Complainant

Respondent

Anonymised Parties

A Deli Assistant

A Food and Beverage Company

Representatives

Elaine Power, B.L instructed by  Sean Ormonde & Co. Solicitors

Louise O Byrne, Arthur CoxSolicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00024060-001

12/12/2018

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

CA-00024060-002

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00024060-003

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00024060-004

12/12/2018

This case concerns a period of employment of four years 2014-2018, where the Complainant, a Deli Assistant had raised several complaints in relation to circumstances which followed a company takeover.

 1.Discrimination on Gender grounds, in relation to her conditions of employment. Victimisation, Harassment, Sexual Harassment.

An earlier claim for Discriminatory Dismissal had been deemed withdrawn by WRC on 4 February 2019.

 The complainant withdrew her claim for discrimination in relation to promotion at hearing.

 2. Constructive Dismissal.

3 Penalisation under Safety Health and Welfare at Work Act, 2005.

4 Penalisation for having made a Protected Disclosure.

The Respondent disputed the claims. Both parties were legally represented, and both parties presented written submissions on the hearing day.

The Complainant found new work on 20 September 2018.  

I have used my discretion to anonymise this entire decision because it is conjoined with other complaints bound to be anonymised.

The Respondent disputed the claims made by the Complainant against the company. The Respondent confirmed that the Complainant had commenced work with the company under the terms of TUPE on 31 December 2017. The Complainant resigned on 17 September 2018 and copied this resignation to the Human Resource Dept on 26 September 2018.

The Respondent reached out to the complainant post resignation and the complainant furnished a formal grievance dated 8 October 2018. The Complainant was interviewed on 9 November 2018. The Complainant was advised that she could be accompanied by work colleague or Trade Union Official, but she chose to attend alone. The Respondent followed on with four further interviews of staff and confirmed on 8 February 2019 that several the complaints were upheld. The Respondent confirmed that Mr A had received a disciplinary sanction as a result.

Claim for Discrimination, Harassment Sexual Harassment and Victimisation

The Respondent outlined that the complainant first raised the issue of Mr A’s inappropriate comments in her letter of grievance submitted post the conclusion of her employment. These allegations varied from sexual innuendo to comments made by Mr A to others, which the Complainant found inappropriate.

These were immediately investigated, and some were upheld, some events were not witnessed. Mr A had been appropriately disciplined by the Respondent.

The Respondent submitted that the complainant had not set out an identified time line for her complaints. She had not placed at a minimum, approximate dates to the events which in turn compromised the Respondent’s capacity to respond.

The Respondent contended that the Complainant had not satisfied the Burden of proof set down in Section 85A (i) of the Act or via the jurisprudence in Southern Health Board V Theresa Mitchell AEE/99/E. The Complainant had not established facts from which discrimination could be presumed.

In relying on Minaguchi v Wineport Lakeshore Restaurant DEC E2002/20, The Former Equality Tribunal identified the three key elements to establish a prima facie case of discrimination.

1.       Covered by relevant ground

2.       Subjected to specific treatment

3.       Resulting in less favourable treatment than someone who Is not covered by the relevant ground

The Respondent’s Mr A treated many staff similarly to how he treated the complainant. i.e. Mr D, the complainant’s male colleague. Adverse treatment was extended to all.

The Respondent continued to pay the complainant 20 hrs a week during the disputed roster period. She built up a time bank to repay later, but she had not lost money. She had in fact been offered additional shifts.

The Complainant had failed to cite a comparator and had not actioned a complaint during her employment.

The Respondent refuted all claims of discrimination.

Victimisation:

The Respondent disputed Victimising the complainant in contravention of Section 74(2) of the Act. In relying on the test established in Department of Defence V Barrett EDA 1019, the Respondent argued that the complainant had not taken any action as described in Section 74(2) and had not indicated her intention to do so. She had failed to establish a nexus between having undertaken a protected act and any adverse treatment   

Claim for Constructive Dismissal:

The Respondent submitted that the complainant had resigned without invoking any of the available internal procedures. She received a copy of the Employee Handbook where the Grievance procedure was set out. The Respondent went on to submit that there was no Organisational awareness of the complainant’s upset and because of that the Respondent had been denied an opportunity to resolve matters within the employment relationship.

The Respondent submitted that the law places a firm burden of proof on the complainant in the case. Citing the EAT case Mc Cormack Core V Dunnes Stores UD1421/2008, where the Tribunal stipulated that an employee is required to outline that “she had no option “outside termination of employment. A Complainant must satisfy either the contract or reasonableness test on the way to satisfying a claim for Constructive Dismissal.

The Respondent submitted that issues of roster had been resolved for the complainant by the end of August, thus ruling out any claim under the contract test.

The Respondent then relied on Western Excavating (ECC) ltd v Sharp [1978] ICR 221,226, where Lord Denning described the threshold to be reached in the “reasonableness test “as “the employee cannot fairly be expected to put up with it any longer “

The Respondent contended that the complainant had by passed the Grievance and Dignity at Work Policy in her rush to resign. Conway v Ulster Bank ltd UD474/1981, determined that an employee had acted unreasonably in not “substantially utilising the grievance procedure “.

The Respondent contended that this was one of four claims with a lot of overlap and submitted that the complainant was actively involved in forum shopping through the legislation. It was unclear to the Respondent just what the complainant was seeking to achieve through a very late in the day grievance raised post her employment finished. The Respondent accommodated her request and took time to investigate and provide findings and conclusions.

It seemed to the Respondent that the Complainant had not established loss resulting from her termination of employment as she had secured immediate employment.

The Respondent argued that the complainant’s resignation was not involuntary as she had secured another job

Complaint under Safety Health and Welfare at Work Act, 2005

The Respondent confirmed that they had not received any complaint from the complainant in terms of Section 27(3) Therefore she had not been penalised.

The sole document raised by the Complainant emerged from October 8, 2018 grievance which went on to be investigated. The Respondent contended that this was served while the complainant was employed in her new position and no penalisation followed receipt of the complaint. The Respondent relied on:

Toni and Guy Blackrock and Paul O Neill HSC/09/5, special HS emphasis on the “but for“ test.

Margaret Baily t/a Finesse Beauty Salon HSD 104, outlined that the presence of a complaint in accordance with Section 27, had to be a precursor to upholding a claim for penalisation.

Claim for Penalisation under Protected Disclosure Act, 2014

The Respondent submitted that the Complainant has not made a protected disclosure on any of the permitted cited “relevant wrongdoings” contained in Section 5 of the Act.  Issues regarding the complainant’s contract are not permissible as protected disclosures.

In considering the definition of penalisation under the Act, the Respondent submitted that the Complainant had resigned her position on a voluntary basis. The Respondent argued that the Complainant was clearly duplicating her claims under Health and Safety and Protected Disclosure legislation.

The Respondent contended that the Complainant has not set out an example of a Protected Disclosure. She had not established any financial loss.

I have given careful consideration to both parties oral and written submissions in this case. I would like to state at the outset that the Complainant’s written submissions of both claims, where she bore the burden of proof were received at the commencement of the hearing. I found this challenging and it has regrettably served to delay my Inquiry and investigations in this case.

The Respondents submissions were received simultaneously.

At first glance, I noted that the Respondent company policies and procedures were reflective of a separate jurisdiction. The complainant’s original contract of employment was firmly based in domestic legislation. I have found that the Respondent erred in not customising their policies and procedures to domestic legislation following TUPE in early 2018. This was something that should have been flagged for a company of this scale during the Due Diligence in the Human Resource Management exchanges. It will be of cardinal importance in the face of a possible Brexit.

However, I also noted that the complainant’s letter of grievance dated 8 October 2018 was also framed against the legislation of a separate jurisdiction. At the hearing, the complainant was represented by Solicitor and Counsel based in this jurisdiction. I found a certain inconsistency here.

CA -000024060-001 Claims of Discrimination, Harassment and Victimisation

On 11 February 2019, the Complainants Representatives clarified that they had accepted the deemed withdrawal status of the claim for Discriminatory Dismissal. They confirmed that the claims in respect of Gender, Promotion, Victimisation, Harassment and Sexual Harassment remained. During the hearing, the claim for Discrimination in relation to promotion was withdrawn.

Claim for Discrimination on grounds of Gender/ Harassment:

The Complainant has submitted that she was treated less favourably than other Male staff during her work. She submitted that she has experienced a prolonged period of negative and insulting behaviour from her Boss. She had a noticeable difficulty in particularising her claim and she did not present witnesses in support of her case.

The Complainant relied heavily on the poor and erratic management of her roster for several weeks April to August 2018 to ground her claim. She submitted a breakdown of one Male and One Female who worked in the Delicatessen and 6 people who worked in the kitchen 2 were female and 4 were male.

Sexual Harassment

The issue for decision by me is whether the respondent sexually harassed the complainant contrary to Section 14 of the Acts?

Section 14(A)1 “Where an employee is harassed or sexually harassed either at a place where the employee is employed or otherwise during his or her employment by a person who is –

(1)    Employed at that place or by the same employer,

(2)    The victim’s employer, or

(3)    A client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that an employer ought reasonably to have taken steps to prevent it,

Or

(B) without prejudice to the generality of paragraph(a) –

(1) such harassment has occurred, and

(ii) either-

(1)    The victim is treated differently in the workplace or otherwise in the course of her employment by reason of rejecting or accepting the harassment, or

(2)    It could reasonably be anticipated that she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victims conditions of employment.

Sexual harassment is defined in Section 14A (7) of the Acts as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s s dignity and creating an intimidation, hostile, degrading, humiliating or offensive environment for the person. It may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. it is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from sexually harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effect .

Section 85 A of the Acts sets down the parameters attached to establishing a prime facie case of discrimination. The Labour Court  interpreted this in  Melbury Developments Limited and Valpeters[2010} 21 ELR 64 .

Section 85A of the Act provided 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. While those facts will vary from case to 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. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.

I found the complainant to be extremely uncertain regarding a chronology in this case. I have noted the assembly of text messages recorded and submitted. However, they were not matched with a clear recall of the events complained of. These centred on the claim of maladministration of roster and the offensive remarks. I am satisfied that the complainant has not alleged that improper physical contact occurred during her employment. However, I remain troubled by her apparent lack of understanding of less favourable treatment.

In Ntoka v Citibank The Labour Court held that  “This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainants power of procurement. Hence the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the resident’s capacity of proof.”

I have listened carefully to both parties’ presentations. I read through the Investigation undertaken on foot of the October 8 grievance. I found that Mr A was found to have engaged in inappropriate behaviour concerning the complainant. There was one witness who appeared to corroborate this whilst many of the reported instances were unwitnessed.

In considering NTOKO , I am drawn to the earlier Australian case of O Callaghan v Loder EOC 92.024, NSW EOC ) for its persuasive value:

“Where the pattern of sexual harassment inflicted on the employee resulted in her being subjected to a hostile or demeaning work environment either the unwelcome conduct itself, or the hostile or demeaning environment created by it, can become such a feature of the employment that it can constitute a term or condition of it. In such a situation, the employee need not prove that there were any tangible employment consequences, the intangible effects are sufficient to invoke the section “

I accept that the sequential sexually lewd commentary directed by Mr A towards the complainant demonstrated an intangible effect on her. I find that she has satisfied the burden of proof required in proving the required facts upon which are of sufficient significance to raise an inference of discrimination.

The Employment Equality Act 1998(Code of Practice) Harassment) Order 2012 serves as a very important tool in the prevention and management of complaints of harassment.

 The code of practice sets down a clear pointer in:

 “Some specific groups are particularly vulnerable to sexual harassment and harassment as there may be a link between the risk of sexual harassment or harassment and an employee’s perceived vulnerability – such as might be the case with new entrants to the Labour market, those with irregular or precarious employment contracts and employees in non-traditional jobs”

I have found that the complainant was a vulnerable worker in that regard. I have considered the Respondent submission on the complainant’s silence during employment on these issues. I note that the complainant contended that she sought to telephone a HR Representative to disclose her story, but she had no detail on this at hearing. The only detail I have contemporaneously with the complaints are the clips from the text messages which were not disputed by the Respondent.

In Atkinson v Carty [2005]ELR1, the Circuit Court held: “It is not sufficient for the Defendants to plead that no amount of paper compliance would have helped in the case of the plaintiff. The failure of the Defendant to have in place adequate procedures renders them liable and by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity from same simply because the plaintiff failed to make a complaint “

The complainant was entitled to work in an environment free from sexual harassment. While I accept that the Respondent had circulated an identified Policy in the Employee Handbook to secure this environment free from harassment and sexual harassment, and this constituted a reasonably practical step to prevent Sexual Harassment

Complainant Rights(extract): All Employees have the right to work in an environment which is free from any forms of harassment. All employees have the right to complain about harassment or bullying should it occur and have their complaint dealt with seriously promptly and confidentially

The Respondent has sought to rely on the defences permitted in section 14 of the Act, that of Policy provision and managing the complaint as it arose. However, I found that the situation was graver than this. The Complainant contends that others were aware of the effects the unwelcome behaviour was having on her. This was reflected in the Investigation report when her female colleague MS R explained that Mr A had directed a sexually suggestive comment to her, but she treated it as banter, whereas she observed that the complainant was troubled by it. I would like to have heard more from Ms R in this regard.

I have concluded that there was a high level of organisational awareness of Mr A’s unwelcome commentary towards the complainant through the complainant’s family and at least two colleagues. While I appreciate that the complainant did not make a complaint, I have been troubled by the “by stander “non-intervention effect which occurred in this case and which, in my opinion has undermined the Respondent defence in the claim. The Code emphasises that the proven presence of harassment/sexual harassment has corporate ill effects as well as human ill effects.

I have concluded that the Complainant experienced discrimination through sexual harassment on grounds of her gender by the repeated verbal and nonverbal comments of a sexual nature by Mr A during her work. The Respondent is responsible for this behaviour by application of vicarious liability in accordance with Section 15 of the Act.

I find this aspect of her complaint to be well founded.

I have not found in favour of the complaint of harassment as she has not satisfied the burden of proof required.

Victimisation:

The Complainant confirmed that she had first actioned her complaint of improper commentary in the aftermath of her termination of employment. The Respondent in applying the Labour Court Case of Department of Defence V Tom Barratt submitted that this negates her claim as she has not been able to link a retaliatory action to her submission of a complaint, coming so late after the employment ended. The Respondent submitted that the complainant had been invited to make complaints on foot of her notice given to leave employment.

Section 74(2) outlines a definition of Victimisation as occurring when dismissal or other penalisation of the complainant was solely or mainly occasioned by a complainant, in good faith sought redress under the Act, opposed by lawful means an unlawful act, given evidence in any criminal proceedings or given notice of an intention to act.

I find that the complainant has not attained the burden of proof necessary in this case. She has not raised facts from which a presumption of discrimination can be inferred. I find the complaint to be not well founded.

CA-00024060-002 Claim for Constructive Dismissal

The Complainant submitted that she had no choice in the face of Mr A’s behaviour directed towards her outside resignation in September 2018.

The Complainant linked her prolonged period of unhappiness to Mr A’s appointment in March 2018 to the time of her departure in mid-September 2018 as the basis for her involuntary termination of employment. This constituted a period of just over 6 months. I have reviewed this period through consideration of the evidence and a consideration of written submissions and case law

Section 1 of the Unfair Dismissals Act 1977-2015 defines a Constructive Dismissal as an involuntary termination of employment due to the conduct of the employer.

There are two noted tests laid down to establish this entitlement to leave through the contract or reasonableness test.

The Complainant has requested that I consider the repeated uncertainty she faced about retention of her fixed Monday and Tuesday roster running in tandem with her payment of Family Income support. The Respondent disputes that the revision in hours was as punitive as that contended by the complainant as she retained full pay throughout while unworked hours were banked. The hours were restored in full following the intervention of the CIS and several weeks prior to her departure. I note from the rosters and texts submitted that the Complainant did not lose out on the fixed roster during every week. I accept that she was fed up at the uncertainty of it all.

I note that the complainant and her extended family had worked for the business for several years before the take-over in late December 2017. I noted a certain ambiguity in the TUPE acceptance on the complainant’s behalf. She had not elected to delete the choice section on whether she wished to exercise her rights under TUPE Statement of Intent form dated 31 December 2017. This did not assist her.

I also noted that the Complainant appeared to adopt a caretaker/advocate approach to other members of her family who were also work colleagues. While I understand the familial instinct and motivation for this, I found that this did not assist the complainant. It did, however, demonstrate a certain tenacity and capacity for advocacy.

I accept that the complainant did experience a very challenging and intrusive Management presence from March to September 2018. However, I am not satisfied that she was somewhat reticent in her recourse to a procedural framework to resolve matters. I accept that the complainant’s hours were linked to her FIS payment and retention of these hours was foremost in her mind. I observed that the complainant was strident in her application of the knowledge and information she received from CIS which had an immediate restorative effect on her hours. I agree with the Respondent that the management of the complainant’s work hours was not of enough severity to constitute a breach of contract. Of course, her hours ought not to have been banked, however, she was paid a 20-hour week.

I have noted that the complainant was near the Company Handbook in that same period and while I appreciate that the confusing reference to another Jurisdictions laws may have been confusing, the grievance procedure as set down seemed to be user friendly and not statute based. Therefore, I am struck by the inconsistency in the application of an aspect of the grievance procedure regarding hours of work and the delay in raising any other issues on a formal basis until the employment relationship had ceased.

I have reviewed the precursor email to the actual grievance lodged on 26 September. Having listened to the complainant, I understood that Mr A was the sole source of her distress until I noted that the follow-on investigation referred to complaints of bullying against Mr A and another Female Manager, Ms D. The Complainant had not guided me towards this lady in her presentation, neither did I meet her at the hearing.

For me, at least, I have placed a certain weighting on the timing of the notice to resign which pre-dated the submission of grievance by almost three weeks. I accept that the complainant experienced a certain amount of fear and loathing of Mr A. These are not circumstancing which instil hope, trust or confidence in any employment setting. However, the complainant had seniority and maturity as an employee and on reflection, I have found that she was aware of the Grievance procedure well in advance of 8 October 2018. I believe that she ought to have given the Respondent the opportunity at least to try and resolve matters during her tenure there.

The Respondent has demonstrated that there were prepared to take all complaints seriously when placed on formal notice of same. It was the Respondent who suggested that the complainant channel her concerns through the grievance procedure. While I have some reservations at the eventual roll out of the investigation in terms of lack of Terms of Reference and signed interview notes, I must accept that this all post-dated the conclusion of the employment relationship.

I was struck by the fact that the Complainant did not endeavour to save her employment relationship. She did not ask for her job back until the hearing. I found a high level of voluntarism in her termination of employment.

Having considered all the points raised and having considered the Employer and Employee behaviour in the case, I must conclude that the complainant, by her lack of recourse to the grievance procedure as a first tool of resolution within the employment relationship, has not satisfied the burden of proof in this case. While I accept that she found Mr A’s behaviour to be unacceptable, she was required to put the employer on notice of this difficulty in a meaningful and procedural framework. This omission has been fatal to her case.

I find that the claim Is not well founded.

CA-00024060-003 Complaint under Safety Health and Welfare at Work Act, 2005

The Complainant submitted that she was penalised for continually raising the issue of her varied hours of work. She maintained that she was penalised by way of her hours not being restored following her challenge to this wrong. She went on to say in evidence that her compulsory relocation to the coffee shop and swift delegation to the Barista Operation without training were manifestations of this penalisation.

The Respondent was adamant that the complainant had not raised a complaint under Section 27(3) of the Act and rebutted her claim of penalisation.

Section 27 of the Safety Health and Welfare at Work Act, 2005

 Protection against dismissal and penalisation.

27

27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, about any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

( e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

The issue at the centre of this complaint has been the management of the complainants working hours post the arrival of Mr A. During cross examination, the complainant confirmed that she had not raised a complaint in accordance with the terms of Section 27(3). I found that she did not appear to understand that the legislation asked that a complaint be made in the first instance before the test for penalisation could be applied.

I accept that the complainant was aggrieved at relocating from the Salad Counter and that she felt aggrieved at having to take on the Barista without training. I noted in later transcripts that Ms D alleged that she had offered Peer training there, but the complainant did not reflect this in her evidence. I also noted that the complainant travelled the 5-minute car journey to the Café with Mr A and was not compelled to walk there.

In Toni and Guy Blackrock Ltd and Paul O Neil HSD095, the Labour Court in upholding a claim for penalisation which led to Dismissal made some incisive remarks where complaints made were found to be the “operative reason “for the complainant’s dismissal.

In this case, the complainant carried a high level of dissatisfaction at the “topsy turvy “management of her roster. I note that she sent texts to seek to standardise this in accordance with her understanding of her contractual rights under TUPE. I note that she did not raise the matter by way of a formal complaint until she had secured the advice and direction from CIS. This was then embraced by the Respondent and her hours were again standardised in their fixed roster, working a 20-hour week.

While I can accept that she did raise issues of her welfare in relation to her rostered hours to maximise work life balance, (her daughters communion), she did not action the grievance procedure.

I cannot establish that the complainant suffered any penalisation for raising this issue. In fact, I found that this was a company in the early days of take-over, several staffs had left, and the complainant was asked to assist operations across site. I cannot view this as a retaliatory action as advanced by the complainant.

I find that the complaint of penalisation is not well founded and must fail.  

 CA -00024060-004   Claim for Penalisation: Protected Disclosure:

I have identified a high level of overlap in the complainant’s statements of claims. While I cannot fully agree with the Respondent that the Complainant forum shopped in her claims, I have identified a high level of disconnect in the complainant’s personal presentation of her evidence. Her evidence featured on the fall out from her working relationship with Mr A, the negative effect on her work life balance and her undisputed need to uphold the prevailing circumstances for her Social Welfare supplementary payment.

This last claim relates to penalisation from a Protected Disclosure.

The Protected Disclosure Act,2014 provides protection to workers who make a disclosure of relevant information in the manner specified in ss 6,7,8,9, or 10 of the Act.

Section 3 of the Act covers the definition, where the information disclosed is information of which the person receiving the information is already aware and provides that it means “bringing to someone’s attention “.

 In the Chapter on Whistleblowing, written by Lauren Kierans B.L in Employment Law, Ms Kierans submits that:

The disclosure must be a disclosure of “information” and not merely a bare allegation or an expression of concern. To attract the protections of the Act, the worker must reasonably believe that the information disclosed tends to show one or more of the relevant wrongdoings.

A breach of employment contract is explicitly excluded from the scope of the Act, Kierans gives the rationale for this as prevention from being confused with the grievance procedure.

I have carefully considered both parties presentations in this case. Both parties have repeatedly referred to the October 8 document as a Grievance activated under the Company Grievance procedure.   On a repeated reading, I have not established that it constitutes a Protected Disclosure.  I am strengthened in that view by the oral arguments of the parties, where the complainant confirmed that she had not made a protected disclosure.

It would have been helpful if the Respondent had hosted a dedicated Policy /Administrative Forms on Protected Disclosure but given the disparity in incorporating Domestic Legislation in the Company Policies, this may have been an oversight. SI 464/2015 outlines a Code of Practice on Protected Disclosure in this jurisdiction. I would suggest that the Respondent have regard for this document in any future Policy Formulation.

I appreciate that complaints under Protected Disclosure are a relatively new phenomenon and case law is still emerging. Anna Monagahn V Aidan and Henrietta Mc Grath Partnership PDD 162, still serves as a very insightful commentary on the test for Penalisation under the Act.

In all the circumstances, I have not established the presence of a Protected Disclosure in this complaint. The complaint is not well founded.

Decision:

CA -00024060-001 Discrimination, Gender, Victimisation, Harassment, Sexual Harassment, Conditions of Employment

 Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act

I have concluded my investigation and I have found that the Complainant experienced sexual harassment in her conditions of employment over the latter part of her employment with the Respondent. While the Respondent had policies available to raise an awareness of the issue, the complainant made a latter-day complaint post the conclusion of her employment. This delay was regrettable.

 I have found that the Respondent is responsible for the Unwelcome behaviour in contravention of Section 14(2) of the Act.

In accordance with Section 82 of the Act, I order the Respondent to pay the Complainant €8,900 in compensation for the distress caused by sexual harassment. This sum is free from tax liability.

I also order the Respondent to undertake an immediate review of the Employee Handbook to expressly customise all references to Legislation as Domestic Legislation.

Finally, I order the Respondent to commence an Organisation wide awareness programme on Sexual Harassment, how to recognise it and what to do about it with a special emphasise on the course of action for a Complainant and a By Stander in a work setting.

I make this recommendation to embrace the principles highlighted in the Code of Practice.

I have found against the complainant in her complaints on Harassment and Victimisation.

CA-00024060-002 Constructive Dismissal

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.

I have found that the complainant has not attained the burden of proof to uphold this complaint. I find the complaint to be not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00024060-003 Penalisation under Safety Health and Welfare at Work, 2005

Section 28 of the Safety Health and Welfare at Work Act, 2005 requires me to make a decision in accordance with Section 27 of the Act.

I have found that the Complainant was not penalised. The complaint is not well founded.

CA -00024060 004 Penalisation for having made a Protected Disclosure

Schedule 2 of the Protected Disclosure Act, 2014 requires that I make a decision in this case.

I have found that the complainant has not made a Protected Disclosure. The complaint is not well founded.

Discrimination , Gender , Harassment , Sexual Harassment , Victimisation , Burden Of Proof .