ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017836

Parties:

26^th February 2019

	Complainant	Respondent
Anonymised Parties	Sales Assistant	Fashion Retailer

Representatives

Lars Asmussen BL, BarryKennyof Kenny Sullivan Solicitors, Alannah Dillon

MP Guinness BL, Emma Lavin of Eversheds Sutherland, Eddie McManus, Ken Thornton

16^th April 2019

Representatives

Lars Asmussen BL, BarryKennyof Kenny Sullivan Solicitors, Alannah Dillon

MP Guinness BL, Emma Lavin of Eversheds Sutherland, Eddie McManus, Ken Thornton

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00023035-001	05/11/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00023035-002	05/11/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00023035-003	05/11/2018

Date of Adjudication Hearing: 16/04/2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a Sales Assistant from 3^rd October 2013 to 29^th September 2018. She worked 7 hours per week and was paid €401.58 per month. She has claimed that she was harassed, victimized and was constructively dismissed. She has sought compensation.

1) Employment Equality Act CA – 23035-002/003

Summary of Complainant’s Case:

On 19^th June 2018 the Complainant attended a meeting in store to discuss the future of that store, its potential closure and potential redundancy. In the presence of a colleague, a sales assistant, her immediate manager placed his hand on the Complainant’s chest, pulled up her top, patted her left breast and said, “we will cover them up for this meeting”. She immediately felt uncomfortable intimidated and violated. She believes that this was discriminatory treatment on grounds of her gender, harassment and sexual harassment. This has had an immediate detrimental effect on her health and was certified unfit for work on certified sick leave. On 20^th June 2018 the Complainant made a complaint to the Team Voice Representative. The Representative undertook to refer this to the Store Manager. She heard nothing and again contacted the Representative on 2^nd July 2018. On 3^rd July she attended a meeting with the Store Manager to address the store closure. At this meeting she referred to her complaint and having listened to her the option of going with a formal complaint, which she did and he requested that she send an email containing the details of her complaint. She did this on 25^th July 2018. On 3^rd July she was informed by the Store Manager that the Regional HR Officer was advised of this matter and he would be in contact. She heard nothing from him. On 25^th July she emailed the Store Manager and recounted the incident and advised him of the effect that it has had on her. She also declined to have the matter addressed by mediation. This email she believes was a formal complaint. On 26^th July the Store Manager ‘phoned her about the future of the store and the potential redundancy. He made no reference to her complaint. On 27^th July she received an email from the Regional HR Officer requesting a meeting. A meeting took place on 31^st July 2018. At this meeting she was repeatedly told that she would not find out the outcome of the investigation. By letter 9^th August the Respondent wrote to her advising her of how serious they matter was but also said “unfortunately I will not be in a position to discuss the outcome of the investigation”. By email she wrote to the Regional HR Officer advising that she had heard nothing and pointed out that it caused her considerable distress. On 19^th September 2018 the Respondent replied referring to non-receipt of medical certificates. In that correspondence he also said that the complaint was being taken very seriously but unfortunately, we are unable to inform you of any outcome. She was later advised that the store where she had worked was to close on 15^th September 2018. They sought from her a position about her future. She replied that she had supplied one medical certificate and she had two more and enquired where to send them. She was reluctant to give them to a manager that she did not know in a store she had not worked in. Further correspondence was exchanged and on 19^th September 2018 she was advised that the Manager against whom she had made a complaint was “no longer in the business”. No further information was provided. She then learned that there was a function to mark the closure of the store, but she was not invited. She maintains that this amounts to victimisation. On 18^th October she wrote to the Respondent summarising how she believed she was treated and she advised that she was being viewed as a nuisance and was being pressurised to take redundancy. She then advised that she was being forced to resign her position. On 15^th October the Respondent replied stating how they had dealt with her complaint and repeated that they were unable to provide any further detail about the alleged perpetrator. She believes that again the Respondent failed to address her complaint. She submits that any male is a comparator for this case. She stated that the conduct amounted to sexual harassment as defined in the Act. She stated that the Respondent failed to properly address her complaint. She cited case law in support. She is seeking the maximum compensation.

Summary of Respondent’s Case:

When the Complainant commenced employment, she received a written contract of employment and a staff handbook with all the rules and procedures. These were contained in the company’s intranet and it is necessary to confirm that you have read them before you can enter the site properly. These policies included the Equality and Diversity policy. This policy was updated in July 2016 and all staff were notified of that change. On 19^th June 2018 all staff in her store were notified that the store would close in September 2018. Staff could transfer to a nearby store on the same terms and conditions or receive statutory redundancy. The Complainant alleges that she was inappropriately touched by her manager and that she reported this to the Team Voice Representative. She asserts that this was a formal complaint. This is not the case. On 3^rd July 2018 the Team Voice Representative informed the Store Manager. That day the Store Manager met with the Complainant to consult with her about the store closure. The matter of the alleged incident was also discussed. She was offered a form of mediation but declined and requested time to reflect as she had to deal with a personal matter as well. It was agreed that she would contact him by email. The only communication he received was a medical certificate. He tried to call her on several occasions without success until 26^th July. She informed him that a formal complaint was made on 25^th July 2018 and she sought to have it investigated. The alleged perpetrator manager was immediately suspended from work. The Senior HR Manager and Area Manager met with the Complainant on 31^st July 2018. The Area Manager met with the alleged perpetrator manager as part of the investigation and he immediately resigned his position. In error this was not communicated to the Complainant. On 7^th August 2018 the Area Manager wrote to the Complainant explaining how serious they were taking the incident. She pointed out that they would not be in a position to provide specific outcome details to the Complainant. They advised her of the counselling service available. The Senior HR Manager tried to contact the Complainant on 16^th August and 3^rd September to update her on matters but didn’t speak to her, he requested her to contact him. She did not reply. The Respondent made attempts to speak to her but she didn’t reply as they wished to speak to her about the store closure and the incident. On 18^th September the Complainant contacted the Area Manager expressing unhappiness about not being contacted since her letter dated 7^th August. This was despite the many efforts that the Respondent had made to contact her. The Senior HR Manager replied by email on 19^th September informing her of their efforts to speak to her with out success. He advised her that she had not responded about the option following the store closure which had now happened. He also advised her that he would not be in a position to inform her of the outcome of the investigation. He asked her to contact him as he wanted to tell her that the Manager had resigned and he wanted to discuss what she wanted to do about her future in the company. There was further email exchange between them on 19^th September. She expressed her disappointment and despair that they were unwilling to provide her with basic information regarding the investigation into her complaint. The Respondent copied her with the letter dated 14^th which informed her that the alleged perpetrator manager was no longer in the business. She emailed the Senior HR Manager on 8^th October 2018 indicating that she wished to resign her position. The Respondent gave a comprehensive reply on 15^th October. She was informed that the manager had resigned as a result of the investigation and he pointed put that she had failed to contact them. He affirmed to her that her position was not redundant. He repeated that redundancy could have been sought. She did not chose to accept the redundancy package offer.

They stated that their company respects and supports all staff. They treat all staff fairly. They have comprehensive policies and they had updated the Equality and Diversity policies in 2016. All managers were briefed, updated and trained on these policies. The system that they use require staff to update themselves on these before entering the employee portal. Once they were advised of the alleged incident they discussed it with her and gave her options as to how she could proceed. Once she decided to go the formal route the manager was suspended. As a result of this investigation the manager resigned his position. She failed to engage with the company. She chose not to engage with the company and resigned her position. The investigation was not flawed.

Regarding the allegation of victimisation by not being invited to the store closure function. This marking of the closure by the staff was not initiated or run by the company. They had no knowledge of the matter or who was invited, so this allegation is rejected. This overall claim is rejected. They cited case law in support.

Findings and Conclusions:

I find that in the first instance the Complainant must establish a prima facie case of discrimination.

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

I also note in the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in Sec 85A that; “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 must 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.”

Vicarious Liability

I note that Sec 145(1) states, “anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”

I note that the Respondent has accepted this responsibility.

In this case I find that the Complainant experienced a behaviour/conduct perpetrated by her immediate manager and witnessed by a colleague that she believed was unwarranted conduct which in her opinion violated her dignity and created an intimidating environment.

I note the definition of harassment under Section 14A (7) of the Employment Equality Act , “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.”.

I find that sufficient evidence was produced to establish the presumption of discrimination.

Therefore, the onus switches to the Respondent to prove that there is no infringement of the principle of equal treatment.

I find that the Complainant experienced this alleged incident of harassment on 19^th June 2018.

I note that the incident was witnessed by a colleague who was the Team Voice Representative.

This matter was not brought to the Respondent’s attention until 3^rd July 2018.

I find that the Store Manager met with the Complainant that day and went through the options available to her, including mediation or formal routes.

I find that the Complainant did not make a formal complaint until 25^th July 2018.

Upon receipt of this complaint the alleged perpetrator was immediately suspended.

I note that the Respondent undertook to carry out an investigation into the complaint.

I note that a meeting took place between the Complainant and her colleague and the Senior HR Manager and Area Manager. At this meeting management pointed out that the Complainant would not be told of the outcome of the investigation.

I note that on 7^th August the Respondent wrote to the Complainant concerning the complaint, however they stated, “Unfortunately I will not be in a position to discuss the outcome of these investigations with you”.

I note that the Respondent repeated this statement to the Complainant on a number of occasions.

I note that this caused considerable concern and unhappiness for the Complainant.

I note that the Complainant wrote a detailed letter on 18^th September setting out a number of pertinent questions to be answered and informed the Respondent how she felt. She stated; “I have heard nothing”, This has caused me considerable distress and upset and has required me to seek medical advice”.

Therefore, I find that the Respondent was well aware of the consequences of this incident on her well-being.

I note that the Respondent replied on 19^th September advising that they are taking the matter very seriously but also reaffirmed “we are unable to inform you of any outcome”. They also advised that the alleged perpetrator was no longer in the business.

I find that it was not sufficient to advise her that her immediate manager who she believed had harassed her was no longer in the business.

I note that the Respondent endeavoured to contact the Complainant without success.

I also note that the Complainant was not sending in medical certificates covering her absence.

I find that the Complainant was entitled to have her complaint properly investigated.

I find that she was entitled to find out the outcome of that investigation.

I find that she was entitled to a decision on whether her complaint was upheld or not.

I find that she was entitled to know what the outcome was, concerning her alleged harasser.

I find that the Respondent has failed to address these matters.

As a consequence, I uphold her complaint of harassment and discrimination.

I note that the Respondent had policies and procedures in place and had managers trained on these policies and procedures.

I note that all staff were given access to these policies and procedures.

Victimisation

I find no evidence to support the Complainant’s allegation of victimisation.

I find that the social event to mark the closure of the store was not a company function and they were unaware of it.

I find no evidence that the Respondent had any involvement in arranging who was invited.

Therefore, I find that that part of the claim fails.

Decision:

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

I have decided that the Complainant has established a case of discrimination for the above stated reasons.

I have decided that compensation is warranted.

I have decided that the Respondent should pay the Complainant compensation of €15,000.

2) Unfair Dismissals Act CA – 23035-001

Summary of Complainant’s Case:

In addition to the above position in CA – 23035-002/003 case she stated that she was constructively dismissed due to the treatment by the Respondent. She had been discriminated against on grounds of her gender, the manner in which she was harassed and sexually harassed by her manager. Also, the manner in which the Respondent carried out a flawed, inefficient and ultimately a toothless investigation. They refused to treat her in a sympathetic fashion. The way that she was treated by the Respondent was likely to destroy the relationship of mutual trust and confidence. The behaviour was so unreasonable that it left the Complainant no option but to resign her position. She is seeking compensation at the maximum that may be awarded. She has been medically certified unfit to work since she resigned her position.

Summary of Respondent’s Case:

In addition to the statement in the above case they also stated that the Complainant has failed to discharge the required burden of proof and she simply chose to resign. Her complaint was investigated and she did not raise any complaint about the investigation. She did not exhaust the internal policies as required under jurisprudence of the EAT and WRC. She has not satisfied the burden of proof and she failed to engage in any form of dialogue with the Respondent. This claim is rejected.

Findings and Conclusions:

I refer to the findings in the above equality case.

I note the definition of constructive dismissal in Sec 1(b) “the termination by the employee of his/her contract of employment with his/her 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”.

I find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.

I note that Dr Mary Redmond in “Dismissal Law in Ireland P340 states, “There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed. Conway v Ulster Bank Ltd In Conway the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaint.”

Also in Berber v Dunnes Stotres 2009 ELR 61 Finnegan J stated: “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 as such that the employee cannot be expected to put up with it”.

Therefore, the Complainant must establish that the conduct of the Respondent was such that she had no alternative but to resign her position.

I find that she has to establish that she has exhausted the grievance procedure fully before contemplating resignation.

I find that once the Complainant made a formal complaint of harassment the Respondent suspended the alleged perpetrator and carried out an investigation.

I find that the Respondent advised her that they would not be able to inform her of the outcome of this investigation and that they did so on a number of occasions.

I find that it was not sufficient to advise her that her immediate manager who she believed had harassed her was no longer in the business.

I find that the Complainant was entitled to have her complaint properly investigated.

I find that she was entitled to find out the outcome of that investigation.

I find that she was entitled to a decision on whether her complaint was upheld or not.

I find that she was entitled to know what the outcome was, concerning her alleged harasser.

I find that the Respondent has failed to address these matters.

As a consequence, I find that this failure on the part of the Respondent caused her unnecessary upset and hurt.

I find that she made this known to Respondent.

I find the Respondent’s failure to advise her of these outcomes has contributed significantly to her decision to resign.

I note that the Respondent made a number of attempts to contact her, but she failed to reply.

I note that she failed to supply medical certificates following the first one.

I find that the Respondent was not expecting her to resign her position.

I find that when she sent her letter of resignation on 8^th October the Respondent did not respond until 15^th October and they did not ask her to reconsider her decision to resign.

I find that there was fault on both sides in this case.

I find the Respondent’s failure to inform her of the outcome of this investigation has contributed significantly to her decision to resign.

I find that the Complainant failed to keep contact with the Respondent and failed to provide medical certificates.

I find that she did not exhaust the grievance procedure.

I note that she has advised that she has been unable to work since her resignation as she has been medically certified unfit.

Therefore if I were to find that she was constructively dismissed then according to Sec 7(1) of the Unfair Dismissals Act she would only be entitled to 4 week’s pay, €400 approximately.

Sec 7 (1) (c) (ii) of the Unfair Dismissals Act 1977 which states, “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

I have decided that she has not met the benchmark to establish a constructive dismissal.

I find that she did not advise the Respondent that she was contemplating resignation.

I find that she failed to keep in contact with the Respondent

I find that she did not exhaust the grievance procedure.

I find that her claim should fail

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.

For the above stated reasons, I have decided that she has not established a case of constructive dismissal.

I have decided that this claim is not well founded and so it fails.

Dated: 13^TH June 2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Harassment and victimization and constructive dismissal