Complainant

Respondent

Parties

Representatives

Solicitor

 IBEC

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-00017141-001

30/01/2018

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

CA-00017141-002

30/01/2018

The Complainant commenced employment with the Respondent on 20th January 2015. She was employed as a part-time Customer Service Representative in the Respondent’s call centre in Dublin. The Complainant worked 20 hours per week and her annual salary was €11,824.00.

The complaint was received by the Workplace Relations Commission on 30th January 2018 at 10.59 am. The complaint has a file reference of ADJ – 00013028 and comes in two parts:

CA – 00017141 – 001 – Complaint referred under section 8 of the Unfair Dismissals Act, 1977.

CA – 00017141 – 002 – Complaint referred under section 77 of the Employment Equality Act, 1998.

The Complainant’s employment ended on 3rd August 2017.

Preliminary Argument:

From the Respondent:

The Complainant resigned from the Respondent organisation on 3rd August 2017 and has taken a case under both the Employment Equality Acts and the Unfair Dismissal Acts.

The Respondent refers to the Workplace Relations Act 2015 which amends section 101 of the Employment Equality Acts as follows with respect to dual claims made under both the Unfair Dismissals and Employment Equality legislation:

4 A (a) When an employee refers-

(i)                  A complaint under section 77, and

(ii)                A claim for redress under the Act of 1997,

To the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the said complaint shall be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 197.

S.I.126/2016 specifies the “relevant date” as 42 days after the notification to the Complainant that section 101(4a) applies.

From the submission set out on behalf of the Complainant in the WRC Claim form it is clear that her allegations with regards to her claim for constructive dismiss and discrimination arise from the same set of facts; in point of fact the precise wording is duplicated in both claims. The wording is clear in linking the claim of harassment to her resignation and is in its essence a claim for dismissal taken under two pieces of legislation. Nothing in the dual statements differentiates one claim from the other. The claimant had the benefit of legal representation when completing her WRC claim form.

The Respondent has received no notice that the claim under the Unfair Dismissals Act has been withdrawn. Accordingly, any claim by the Complainant for discriminatory dismissal under the Employment Equality Acts cannot properly be before the Adjudication Officer, nor can the claimant pursue a claim under this legislation for issues identical to those outlined in her claim for constructive dismissal.

The Complainant’s case is that she has been discriminated against on the grounds of gender in that she was harassed and/or sexually harassed on 20th May 2017 (and on a previous occasion with inappropriate messages) and that the Respondent did not take any adequate steps to prevent such harassment and/or sexual harassment. Further or in the alternative, the conduct of the Respondent was such that it was reasonable for the Complainant to resign her employment in circumstances amounting to constructive dismissal.

The Complainant requests that the parties be anonymised in the published version the decision in this matter.

The Complainant commenced employment with the Respondent on 19th January 2015 as part time Customer Services Advisor on a salary of €11,000. The Complainant also received incentivised pay.

Unfortunately the Complainant has had a difficult medical history of which evidence will be given and has experienced absence due to illness throughout her employment.

In the days leading up to 20th May the Complainant was absent on sick leave and had also demonstrated severe anxiety in work which required her to leave the premises on occasion. When she returned to work on 20th May 2017, a team leader Mr N unexpectedly and without warning grabbed the Complainant from behind in a bear hug taking her completely by surprise. The Complainant was shocked and did not know how to react. Mr N then said, “let’s go get a coffee and have a chat”. This referred to a previously arranged discussion with Mr N in relation to the Complainant’s pain management, depression and anxiety and which was impacting her work. He again unexpectedly embraced her from behind as they entered the lift. The Complainant started to feel extremely anxious. They went outside to the smoking area and the manager took her hand while questioning her making the Complainant feel distinctly uncomfortable. The Complainant withdrew her hand and hurried to end the conversation and left. At the end of the day, the Complainant was chatting to a colleague with her back to Mr N when he again came up behind her and again grabbed her in a bear hug. The Complainant was shocked. She did not know what Mr N’s intentions were or the reason for his actions. The Complainant’s immediate reaction was to say to her colleague that she hadn’t done anything. The Complainant’s colleague also appeared shocked and reassured her that she had not done anything wrong. The Complainant will give evidence of these said encounters with Mr N and that she had previously received inappropriate Facebook messages from Mr N.

The Complainant again commenced sick leave. She complained to her direct manager by email, highlighting the events of 20th May 2017. An investigation was commenced. Mr N was absent from work. The Complainant believed he was on holiday but he may in fact have been suspended pending the investigation.

The Complainant was later advised that another team leader who was working on 20th May 2017 had observed the events in question and had independently made a complaint in relation to Mr N’s inappropriate actions.

The incidents aforesaid had a particularly negative effect on the Complainant as she had previously been a victim of a very serious sexual assault and the conduct of Mr N resurrected traumatic memories for her and set the Complainant back in many aspects of her health and life.

The Complainant also became aware that similar complaints had previously been made about the conduct of Mr N.

The Complainant became concerned about breaches of confidentiality when she was informed by a colleague that they had overheard a conversation between two uninvolved employees at a bus stop relating to her complaint. The Complainant felt that she was the talk of the office. The prospect of working with Mr N terrified the Complainant and she resigned her position by email dated 3rd August 2017.

The Respondent has since alleged that it took appropriate action to deal with Mr N. The Complainant was not advised of any such action or given any reassurance about her safety at work following the incident.

Although the servants or agents of the Respondent acted sympathetically towards the Complainant her pay was stopped during her absence from 20th May 2017.   It is accepted that the Complainant had exhausted her contractual sick pay but felt victimised at being left without pay as a result of this incident in the workplace and having a complaint in relation thereto.

Submission

Complaint under Section 77 of the Employment Equality Acts

If necessary, the Complainant makes application pursuant to Section 77 (5)(b) that the reference periods for this complaint be extended to 12 months:

“On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall 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 direction is given, this part shall leave effect accordingly”.

The Complainant will give evidence of Reasonable Cause in support of this application, being evidence of very serious illness experienced by her following the events of 20th May 2017. The Complainant has had limited capacity to deal with the pressures of everyday life in addition to out of the ordinary events that have occurred.

It is submitted that the events set out and the conduct of Mr N constituted harassment or sexual harassment within the meaning of Section 14A of the Employment Equality Acts and in particular the following provisions:

“14A. (1) for the purposes of this Act where –

a) an employee (in this section referred to as the victim) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is –

(i) employed at that place or by the same employer,

--- --- -- -- ---

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

14.A (7)(a) In this section –

References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

References to “sexual harassment” are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

It is submitted the conduct of Mr N had the effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her. This was particularly so given that Mr N was a person in authority to the Complainant.   To the best of the Complainant’s knowledge, the events are not disputed by the Respondent. The Complainant’s subsequent conduct and illness was entirely consistent with having been harassed and/or sexually harassed. It is submitted therefore that the Plaintiff establishes a prima facie case and the burden of proof shifts to the Respondent in accordance with Section 85A of the Acts. In the case of Arturs Valpeters v Melbury Developments Ltd the Labour Court whilst examining the circumstances in which the probative burden of proof operates held as follows:

“Section 85A of the Acts 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 ….”.

It is further submitted that the Respondent did not take all steps reasonably practicable to prevent Mr N from harassing and/or sexually harassing the Complainant. In particular:

a) It failed or neglected to have adequate policies, procedures and/or training in place to prevent such conduct. The Complainant does not recall being issued with or advised of any such appropriate policy or receiving any appropriate training. If, which is not accepted, the Respondent does have policies and procedures in place that comply with the Code of Practice, it did not take all reasonable efforts to effectively communicate and implement the existence of such policies to its workforce. For example, it appears that a grievance meeting was held as opposed to an investigation pursuant to the Dignity at Work or Bullying and Harassment policy.

It failed to adequately address previous complaints against Mr N in such manner as would protect the Complainant from harassment and/or sexual harassment but rather instructed or allowed Mr N to interact with the Complainant on particularly sensitive matters, being aware of the Complainant’s vulnerable status.

Further to the foregoing, the Respondent did not take any sufficient steps to mitigate or reverse these severe effects of the harassment or sexual harassment on the Complainant. In particular, the Complainant was not given any reassurance in relation to the safety of her workplace. Nor was the Complainant advised that she would not have to work alongside Mr N, even at the point of her resignation. She was not offered an apology. Rather, her pay was suspended (it is not disputed that the Complainant had exhausted her normal sick pay entitlement).

It is submitted for the foregoing reasons that the Respondent is not entitled to rely on the defence set out in Section 14 (A)(2) of the Employment Equality Acts and is therefore liable to the Complainant pursuant to Section 14 (A)(1).

If necessary, the Complainant further relies on Section 15 of the Employment Equality Acts:

“15 (1) 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”.

It is submitted that the motivation or intention of Mr N is not relevant and that the effects of the harassment/sexual harassment on the Complainant were particularly severe.

Furthermore, it is submitted that having made a complaint against Mr N, the Complainant was victimised when she was deducted pay in relation to absence that arose as a result of the conduct of Mr N.

The Complainant seeks compensation for the effects of the discrimination, harassment and/or sexual harassment and victimisation.

Complaint under the Unfair Dismissals Act

The Complainant remained on sick leave following this incident. She did not return to work other than to participate in the investigation. It is accepted that the Complainant was very complimentary in respect of how servants or agents of the Respondent had treated her. However, it is submitted that the Complainant’s complaint was not handled in such a way as to assist her in a return to work. She was not kept informed of the steps that were to be taken in relation to Mr N. She was not provided with any reassurance that she would be provided with a safe place of work, free from harassment and/or sexual harassment. Ultimately, it was the prospect of the return to work of Mr N and the consequences for the Complainant’s health that left her with no option but to terminate her employment and it is submitted that in the circumstances, it was reasonable for her to do so.

The Complainant seeks compensation for unfair (constructive) dismissal and will give evidence of her loss.

Conclusion

In conclusion, it is submitted that the conduct experienced by the Complainant, constituted discrimination, harassment and/or sexual harassment within the meaning of the Employment Equality Acts, that the Respondent did not take any adequate steps to prevent this discrimination, harassment and/or sexual harassment and the Complainant seeks compensation for the very significant effects of the said discrimination harassment and/or sexual harassment.

Further and/or in the alternative, it is submitted that it was reasonable for the Complainant to resign in the circumstances and she seeks compensation for Unfair (Constructive) Dismissal.

Background

The Complainant commenced employment with the Respondent on 20th January 2015. She was employed as a part time Customer Service Representative in the Respondent’s Call Centre. The Complainant worked 20 hours per week and her annual salary was €11,824.

On 18th May 2017 the Complainant returned to work after a period of sickness absence.   For the record, this period of illness was not work related. On this evening the Complainant, by her own account, became overwhelmed in work after dealing with a difficult customer call and left the building without notifying a member of management. Her own Manager, Mr M, was not working on this date so she texted another Manager Mr N to inform him that she had left the office. Mr N agreed to meet her on Saturday 20th May 2017 to put a plan in place to support her return to work.

Mr N also emailed her direct Manager, Mr M on 20th May to give him an overview of his conversation with the Complainant.

On Wednesday 24th May 2017 Mr M while still on leave, received an email from the Complainant. She alleged that Mr N had acted inappropriately towards her.   Specifically, she said that he hugged her from behind more than once and taken her hand, that some of her colleagues had witnessed this and that on account of this, she felt genuinely uncomfortable.

As Mr M was not in the office, he texted the Complainant to apologise for any distress caused and informed her that he would speak to his own Manager to seek guidance on the matter.

On 12th June 2017 Mr M met with the Complainant along with his own Manager Mr G, to discuss the incident described in the email. In this meeting, Mr G explained to the Complainant the difference between raising this complaint formally or informally. He explained in detail how the formal processes operated and referred her to the Grievance policy.

On 13th June 2017 the day following this meeting, the Complainant commenced a period of sick leave, citing work related stress. She informed the Respondent of this by email. The Manager, Mr G respondent to the Complainant reminding her of the Employee Assistance Programme. He reiterated her to raise her complaint formally through the Grievance policy.   On 21st June 2017, the Complainant confirmed by email that she did not want to raise the complaint in a formal manner through the Grievance policy.

Mr N was on annual leave between 30th May and 18th June 2017 which meant his Manager, also Mr G did not have an opportunity to have a conversation with him until his return to work on 19th June 2017. Following this conversation, a business decision was made to conduct an investigation due to the serious nature of the allegations.   Having been given notice of alleged sexual harassment the Respondent considered that they had an obligation to conduct an investigation, notwithstanding the absence of a formal grievance being lodged. As a safeguarding measure, Mr N was suspended pending the outcome of this process on 21st June 2017.

Mr SD Sales Performance Controller and Ms LB HR Consultant were assigned to investigate the allegations.   Interviews commenced on 30th June 2017 and concluded on 26th July 2017. The Complainant and other employees of the business (including Mr N) were interviewed. During her interview, the Complainant acknowledged that she understood that while she did not wish to raise a formal complaint, she was making a formal statement in respect of the allegations she had raised.

While, for data protection purposes, the Respondent is not at liberty to disclose the detail of any resultant process, the Respondent can confirm that the allegations raised by the Complainant were taken seriously and that the Respondent took appropriate actions following the outcome of the investigation.

At all times during the investigation the Respondent offered substantial support to the Complainant. In particular, the Employee Assistance Programme was available to her. At no point during or after the investigation did she raise any issue nor communicate any disappointment or dissatisfaction with the way that the investigation was managed. From the date of the incident at the centre of the Complainant’s allegations to the date of the Complainant’s resignation, she did not work with Mr N. Mr N was as aforementioned, suspended pending the outcome of the process initiated by the Respondent and the Complainant and Mr N were never both present in the building at the same time following the incident of 20th May 2017.

The Complainant resigned her employment with the Respondent company on 3rd August 2017, without notice, by email to Mr G and Mr M.   The Complainant complemented and commended the business for the manner in which her complaint was handled, and the support provided to her throughout the investigation. She specifically stated, “you guys have bent over backwards for me and its been handled very delicately and with extreme care”.

Following her resignation, the Complainant contacted the Respondent ER Department querying her final salary which she was dissatisfied with. After querying with our payroll team, the Respondent’s Head of HR confirmed with the Complainant that her final salary payment was correct. This was the only contact that the Respondent had with the Complainant following her aforementioned complimentary resignation.

The Respondent was surprised to receive from the Complainant, what appeared to be an allegation of dissatisfaction on the part of the Complainant by letter of 29th January 2018, some five months after her resignation. This letter was not signed by the Complainant, but instead was issued by the Complainant’s Solicitor. The Respondent was most surprised to receive such a letter, asking for the Respondent to “admit” their client’s claim and for the Respondent to set their proposal to compensate the Complainant for her loss. The Respondent was advised that a complaint would be lodged unless they heard from the Respondent by immediate return admitting their client’s claim.

Notwithstanding this retrospective allegation of dissatisfaction, the Respondent maintains that the steps taken when notified of the alleged incident, where appropriate, the Respondent takes allegations of sexual harassment extremely seriously.   The Respondent has a Discrimination, Harassment and Victimisation Guide, in addition to its Grievance policy, which is available to all employees, the existence and location of which is confirmed during induction. As part of his management training Mr N completed a Manager Development Programme over a number of months. In addition to this Manager Development Training, on 8th March 2017 he completed a full days training on People Management Essentials which was facilitated by the HR team. This day included an overview of all key HR policies and procedures specifically an in-depth training session on the conduct policy. Furthermore, the Respondent have developed a Dignity at Work Manager workshop which all their People Managers have attended and subsequently briefed to their teams. This workshop covers in brief:

·         What is sexual harassment

·         Managers role in helping to prevent sexual harassment in the workplace

·         How to deal with complaints of sexual harassment

Clearly, the Respondent has made a significant and sustained investment in providing training to its Managers and staff alike, on dignity in the workplace. Mr N had most recently completed training in relation to same only 2.5 months prior to the incident which the Complainant complains of.

The Law

Section 1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal in relation to an employee as, inter alia

“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 Complainant alleges that the above events have culminated in her unfair constructive dismissal. The Respondent submits that this is factually and legally incorrect. At no point, either during her employment or at the time of her resignation, did the Complainant indicate in any manner that the Respondent’s actions were such that she considered herself constructively dismissed. In fact, her letter of resignation indicates the opposite to be true.   Where it to be the case that the Complainant, at odds with the statements made in her letter of resignation, had a grievance with the Respondent’s handling of her allegations against Mr N, or with any other matter, it was nonetheless unreasonable for her to consider herself constructively dismissed in the circumstances, where no such grievance was lodged.

In accordance with established principles adopted by the WRC, the Labour Court, the EAT and the Courts, there exists a burden on the employee to demonstrate that:

a) the employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b) the employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither criterion has been met.

“Contractual Test”

The Respondent at all times operated within the terms of the contract of employment between the parties. No contractual violation occurred. The Respondent would draw on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank UD 474/1981 to confirm this position, in that the Respondent did not violate any term of the contract or organisation policies, express or otherwise. The Respondent’s actions were in no manner “ a repudiation of the contract of employment” and did not demonstrate “that the respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”. In light of this, it is the Respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

“Reasonableness Test”

In respect of reasonableness, it is the Respondent’s position that there exists two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures. This is in accordance with established approaches as expressed by the Tribunal for example in McCormack v Dunnes Stores UD 1421/2008, where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

It is the employer’s position that it acted reasonably and fairly at all times in accordance with its policies, best practice and appropriate conduct.

Reasonableness – the conduct of the employer:

The Complainant submitted a complaint, related to a member of management hugging her, which she deemed inappropriate on 24th May 2017. The Complainant submitted this complaint to her direct line manager Mr M who she knew to be on annual leave at the time of lodgement. Having consulted with another senior member of management, the Complainant’s manager arranged to meet her on 12th June and, in the interim, the accused was suspended as a safeguarding measure on 30th May such that the Complainant did not work alongside him from the date of the alleged incident onwards. These actions could not be considered unreasonable.

The Respondent’s grievance procedure was explained to the Complainant, and then she was twice informed of her right to raise a formal grievance, however, she opted not to do so.   Had she done so, she would have been afforded all rights to natural justice in line with company policy.

Notwithstanding this, in recognition of its duty of care towards the Complainant, and in light of the nature of the incident alleged, the Respondent initiated its own investigation into the conduct of Mr N. In the absence of receipt of a formal complaint, this is a step beyond what would be expected of even the most reasonable employers. The Complainant herself stated that the Respondent “bent over backwards for her” in this regard.

The Complainant was invited to participate in this investigation and did so willingly.   She submitted a statement in the course of same which was considered by the investigation panel when reaching their outcome.

Reasonableness – Exhausting procedures

As aforementioned, the Complainant at no point raised a formal complaint against Mr N nor did she ever complain to the Respondent that their handling of the issue was at any point inadequate. Had she done so, such a grievance would have been dealt with in line with the Respondent policies.

In fact, nothing the Complainant said in respect of the Respondent’s handling of the matter would suggest that she was in any way aggrieved with their handling of her issue.   Her resignation letter states

“I can’t compliment xxxx enough on how the company have handled any of the issues I raised with the utmost compassion and candour.   This will never be forgotten”.   She goes on to say that she was made to “feel welcome no matter what so I thank you .. from the bottom of my heart”. She states that the company bent over backwards for her and that the matter that she raised informally was “handled very delicately and with extreme care”. These words do not describe an employer who had acted so unreasonably as to force an employee to involuntarily resign.

On the basis of the above, the Respondent does not accept that there was any dissatisfaction or outstanding grievance on the Complainant’s behalf with the Respondent at the time of her resignation, and certainly if there was, she did not make the Respondent aware of same. Thus, she failed to afford the Respondent the opportunity to address same and thus the burden of proof in respect of this alleged constructive dismissal has not been met.

The Respondent further states that the Complainant indicated in her letter of resignation that the decision to resign was one that she “didn’t make lightly”. This is indicative of the Complainant having deliberated prior to resignation and having considered her options. This statement, particularly in the context of other statements made in her resignation letter, is not demonstrative of an employee who had no option but to resign. Therefore, it cannot be said that her resignation was involuntary.

The Respondent draws the Chair’s attention to the following cases in which the burden of proof regarding claims of unfair dismissal is explored:

In Terminal Four Solutions Ltd v Rahman UD 898/2011, the EAT found as follows:

“However the burden of proof rests on the respondent [the employee] to show that she had no choice but to leave her position in the appellant company. The [employee] must show the Tribunal that her resignation was not voluntary and that the conduct of her employers was so unreasonable that she had no option but to resign. Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”.

In Kenouche v Four Star Pizza UD 962/2008 it was stated that :

“the conduct of [of the employer] referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee.   Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the resignation by the employee”.

In Employee v Employer, UD 200/2012, the Tribunal noted that:

“Having heard all the evidence in this case the Tribunal finds that the conduct of the employer was less than exemplary. However, the burden of proof in a constructive dismissal claim presents a claimant with a high bar to overcome. The Tribunal finds that the claimant did not reach the bar […]”.

And finally, in Employee v Employer UD 1840/2011:

“The burden of proof rests with the claimant to demonstrate that her decision to resign her position with the respondent company was reasonable in all the circumstances. In particular, the claimant must show that the resignation was not voluntary and that the respondent company acted in such a way that no reasonable person could or would continue working for the respondent”.

In circumstances where the claimant indicated such strong fondness for the company at the time of her resignation, the respondent states that she has failed to demonstrate that her resignation was anything other than voluntary. Furthermore, the claimant did not raise a formal grievance prior to her resignation and her informal grievance was investigated. The Complainant resigned prior to the culmination of that process and therefore prior to process having been exhausted.   If it were the case that she was aggrieved by some other matter, her failure to utilise internal procedures, particularly given the fact of her clear knowledge of the process, is a fatal flaw to her claim which resultantly cannot succeed.

Claims under the Employment Equality Acts

Harassment/Sexual Harassment

The Complainant has claimed that she had been harassed on the gender ground and/or sexually harassed in the workplace.

Section 14 A (7) of the EEA defines harassment / sexual harassment as follows:

“(a) in this section –

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and

(ii) references to sexual harassment are to any form of unwanted verbal non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c ) without prejudice to the generality of paragraph (a) such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

Section 14 A (2) provides as follows:

“if harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1) it is a defence for the employer to prove that the employer took such steps as are reasonably practicable –

(a) in a case where subsection (1)(a) applies (whether or not subsection 91)(b) also applies) to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as an ------ such treatment has occurred, to reverse its effects”.

The Respondent submits that it has discharged its responsibility to prevent harassment or sexual harassment in the workplace. The Respondent notes that the Labour Court and Equality Tribunal has habitually found that the existence of adequate policies and procedures at the material time, is a defence under Section 14.

The Respondent also operates a grievance procedure and with specific reference to the Complainant, she was offered and declined her right to raise a formal grievance but once the Respondent was put on notice of the allegations, it nonetheless took immediate action to investigate the same, and appropriate safeguarding and remedial action to address the issues raised. It is the Respondent’s respectful submission that the matter was dealt with promptly, objectively and fairly. As such, the Respondent had both taken steps to prevent the Complainant from being harassed or sexually harassed, but also took immediate steps as were reasonably practicable to address all matters raised by the Complainant, and to reverse any effects of her alleged treatment and ensure that such behaviour as was discovered to have taken place, would not be repeated.   It is respectfully submitted that the Complainant’s claim in this regard should fail.

Conclusion

The fact of dismissal is in dispute. The Respondent strongly asserts that the Complainant’s resignation was voluntary and of her own violation. No dismissal occurred within the meaning of the Unfair Dismissals Acts. The Respondent requests that the Adjudication Officer find in favour of the Respondent and dismiss this claim.

Insofar as the Complainant alleges that she was harassed or sexually harassed within the meaning of the Employment Equality Acts, the Respondent submits that it has taken all reasonable steps to prevent such an incident occurring and fulfilled its obligations to act upon such a complaint once received.

The Complainant has not been victimised within the meaning of the Acts.

The Respondent requests that the Complainant’s claims under the Employment Equality Acts be dismissed.

The Respondent reserves the right to adduce further evidence in its defence of this claim either prior to or at the hearing of this matter.

CA – 00017141 – 001 – Complaint referred under section 8 of the Unfair Dismissals Act, 1977.

As per her submission the Complaint states that it was reasonable for her to resign from her employment in circumstances amounting to constructive dismissal.

The events of 20th May 2017 are described in the Complainant’s submission as follows:

“In the days leading up to 20th May the Complainant was absent on sick leave and had also demonstrated severe anxiety in work which required her to leave the premises on occasion. When she returned to work on 20th May 2017, a team leader Mr N unexpectedly and without warning grabbed the Complainant from behind in a bear hug taking her completely by surprise. The Complainant was shocked and did not know how to react. Mr N then said, “let’s go get a coffee and have a chat”. This referred to a previously arranged discussion with Mr N in relation to the Complainant’s pain management, depression and anxiety and which was impacting her work. He again unexpectedly embraced her from behind as they entered the lift.   The Complainant started to feel extremely anxious. They went outside to the smoking area and the manager took her hand while questioning her making the Complainant feel distinctly uncomfortable. The Complainant withdrew her hand and hurried to end the conversation and left. At the end of the day, the Complainant was chatting to a colleague with her back to Mr N when he again came up behind her and again grabbed her in a bear hug. The Complainant was shocked. She did not know what Mr N’s intentions were or the reason for his actions”.

On 24th May 2017 the Complainant’s Team Leader, Mr.M received an email from the Complainant. In this email the Complainant alleged that Mr. N had acted inappropriately towards her. Specifically, she said that he had hugged her from behind more than once and taken her hand, some of her colleagues had witnessed this and that on account of this she generally felt uncomfortable.

Due to annual leave commitments Mr.M was not in a position to meet with the Complainant until 12th June at which time he met with her and his own manager, Mr. G, was also in attendance at this meeting Mr.M explained the difference between raising a grievance formally or informally. He explained in detail how the formal process operated and referred her to the Grievance Policy.

On 21st June the Complainant confirmed by email that she wished to raise the grievance in an informal fashion – it was not her wish to formally utilise the Grievance Policy.

On 19th June Mr.M met with his manager, Mr. G to discuss the matter. A decision was made to conduct an investigation due to the serious nature of the allegations. Having been given notice of alleged sexual harassment the company considered that they had an obligation to conduct an investigation, notwithstanding the absence of a formal grievance being lodged. Mr. N (the alleged perpetrator was suspended pending the outcome of this process on 21st June 2017.

Mr SD Sales Performance Controller and Ms LB HR Consultant were assigned to investigate the allegations.   Interviews commenced on 30th June 2017 and concluded on 26th July 2017. The Complainant and other employees of the business (including Mr N) were interviewed. During her interview, the Complainant acknowledged that she understood that while she did not wish to raise a formal complaint, she was making a formal statement in respect of the allegations she had raised.

The Complainant, as part of the ongoing investigation, was interviewed on 12th July 2017.

The Complainant worked on 22nd July 2017 and then was on sick leave until 3rd August 2017, the day she resigned with immediate effect.

The Respondent representative has pointed to the following in relation to the complaint of constructive dismissal:

The Complainant alleges that the above events have culminated in her unfair constructive dismissal. The Respondent submits that this is factually and legally incorrect.   At no point, either during her employment or at the time of her resignation, did the Complainant indicate in any manner that the Respondent’s actions were such that she considered herself constructively dismissed. In fact, her letter of resignation indicates the opposite to be true.   Where it to be the case that the Complainant, at odds with the statements made in her letter of resignation, had a grievance with the Respondent’s handling of her allegations against Mr N, or with any other matter, it was nonetheless unreasonable for her to consider herself constructively dismissed in the circumstances, where no such grievance was lodged.

In accordance with established principles adopted by the WRC, the Labour Court, the EAT and the Courts, there exists a burden on the employee to demonstrate that:

a) the employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b) the employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment.   It is the Respondent’s position that neither criterion has been met.

In respect of reasonableness, it is the Respondent’s position that there exists two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures. This is in accordance with established approaches as expressed by the Tribunal for example in McCormack v Dunnes Stores UD 1421/2008, where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

In this instant case the Complainant did not utilise the formal grievance procedure. The Respondent commenced an investigation into allegations and the Complainant resigned from her position before the outcome of that investigation was known. The Respondent appears to have acted reasonably and fairly at all times in accordance with their own policies, best practice and appropriate conduct.

It is for these reasons that I find the complaint as presented under the Unfair Dismissals Act, 1997 to be not well founded and therefore fails.

CA – 00017141 – 002 – Complaint referred under section 77 of the Employment Equality Act, 1998.

The Employment Equality Act 1998 (as amended) at section 77 (5) (a) reads as follows:

“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”.

In her complaint form to the Workplace Relations Commission the Complainant has alleged that the most recent date of discrimination was 04/08/2017. On 03/08/2017 the Complainant resigned by email “with immediate effect”. The Complainant was not an employee of the Respondent company on 4th August 2017.

When tendering her resignation, the Complainant was on sick leave and had been so since 25th July 2017, her last day in work was 22nd July 2017. The most recent date of discrimination must have been before 22nd July 2017, the six month period from this date ended on 21st January 2018. The complaint was received on 30th January 2018.

Points 10 and 11 of the Complainant’s submission reads as follows:

If necessary, the Complainant makes application pursuant to Section 77 (5)(b) that the reference periods for this complaint be extended to 12 months:

“On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall 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 direction is given, this part shall leave effect accordingly”.

The Complainant will give evidence of Reasonable Cause in support of this application, being evidence of very serious illness experienced by her following the events of 20th May 2017. The Complainant has had limited capacity to deal with the pressures of everyday life in addition to out of the ordinary events that have occurred.

In considering if ‘Reasonable Cause’ existed at the time I have considered the following:

·         The Complainant was obviously well enough to look for other employment and attend interviews.

·         At the hearing of this complaint the Complainant informed that she received a job offer on 4th August 2017.

·         The Complainant commenced new employment on 28th August 2017.

I’m not satisfied that there is a reasonable cause and that any possible extension of time is not merited.

My decision on this complaint under section 77 of the Employment Equality Act, 1998 is that it is out of time and therefore fails.

As outlined above.

Constructive Dismissal; Employment Equality.