ADJ-00020233

Complainant

Respondent

Anonymised Parties

A Health Care Assistant

A Healthcare Agency

Representatives

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00026436-001

18/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00026436-002

18/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026436-003

18/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026436-004

18/02/2019

The complainant says she was sexually harassed by an employee in the care home where she had been placed by the respondent. Following this she was victimised and suffered a loss of pay when she was suspended. The respondent says they dealt with complaints made by the complainant and considered the issue had been dealt and they confirm she was not paid when she stopped working for them but this was not a deduction within the meaning of the Payment of Wages Act.

CA-00026436-001

The complainant submits that on 4 December 2018 she was sexually harassed by another worker in the care home where she had been placed by the respondent. She told a supervisor about the incident and he called in the alleged harasser. They spoke about the incident and he apologised and they shook hands. He was smirking during this meeting and the complainant did not think he was serious about the apology. The complainant assumed the care home would investigate the incident.

The following day she spoke to the supervisor as her name was not the rota board. He asked her to go to a particular unit where the alleged harasser was working. She found this upsetting and said she would prefer not to work there. She was allowed to work elsewhere. However, following the incident a number of comments were made by fellow workers which amount to victimisation.

She worked on 7 December but scheduled shifts on 8 and 12 December were cancelled.

On 10 January 2019 she met a representative from the respondent, and they discussed the harassment and other incidents and she was told an investigation would take place; but it never happened. She later received an email saying she was getting no more work because of the allegations she had made.

Subsequently she moved to County Kerry and tried to get work with the respondent but was told there was no work available.

CA-00026436-003

The complainant submitted that she was not paid when she was suspended after 7 December 2018.

CA-00026246-002 & CA-00026346-004

The complainant gave no separate evidence in relation to these disputes.

CA-00026436-001

A representative from the care home gave witness evidence that the supervisor invoked their procedure when the complainant reported the alleged sexual harassment. Following the meeting with the supervisor and the complainant and alleged harasser the parties shook hands and the complainant said she did not want to formalise her complaint. They considered the matter closed.

The respondent representative spoke to the complainant on 4 December about the incident, she offered to sit in on the meeting, but the complainant said she was fine. The representative contacted the complainant on 6 December and asked if she wanted a manager’s presence to meet the care centre. She turned down the offer and gave no indication she wanted the respondent to take any further action. On 7 December the complainant told the respondent about the meeting with the supervisor and that she had received an apology from the alleged harasser, and they had shaken hands.

The complainant worked at the same care home on 5, 6 and 8 December. She was offered work in different locations on 9, 10 and 11 December but the complainant turned them down. She did work in a different location on 11 December.

On 12 December the care home activated the “DNR” arrangement and requested that the complainant not return to work on their site.

Following this the complainant requested not to be offered work in 3 locations. On 3 January she worked in another location. When the manager asked how she was getting on she said she was putting a case together against the respondent. She also made a comment about the client’s users with which the manger was uncomfortable. When they found out the respondent spoke to the complainant about this and she responded with a complaint about one of the client’s employees. The respondent met the complainant on 10 January to discuss this. The complainant repeated her complaint against the first care home and made two further allegations, and she repeated her complaint regarding an incident on 3 January 2019. The complainant was tole that because of “DNR” requests coming in from 6 different locations and her own limited availability there was no work available, but her allegations would be passed to the HR Department. She was asked to furnish the respondent with a written statement. The complainant indicated she had referred the matter to the Gardai, and the respondent was of the view she did not wish to pursue the matter under their policies. No statement was received from the complainant until 27 February when they received a copy of the statement which she appended to her WRC complaint form, which had been lodged 9 days previously. This indicated that she no longer wished to be an employee of the respondent and she did not intend to pursue a complaint internally but was doing so through the WRC.

The respondent submits they have discharged their responsibility in relation to the claim of sexual harassment; in that they have policies and procedures in place which the complainant could have used to pursue her complaint.

The respondent rejects the claims of victimisation, as the complainant was not suspended.

CA-00026436-003

The respondent submits the complainant was paid for all the hours that she worked and was not suspended, it was just that work was not available.

CA-00026246-002 & CA-00026346-004

The respondent could not answer these disputes as no evidence was given by the complainant.

CA-00026436-001

Section 14A of the Employment Equality Acts states:

“(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,

(ii) the victim’ s employer, or

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

or

( b ) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

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

(II) it could reasonably be anticipated that he or she would be so treated,

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

(2) 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 (1)(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 any such treatment has occurred, to reverse its effects.”

In considering the allegation of Sexual Harassment I have to consider if the respondent “took such steps as are reasonably practicable” to deal with allegation of sexual harassment. When they found out about the incident on 4 December 2018 the respondent offered to attend with the complainant in the workplace meeting, but this was declined by the complainant. They contacted her two days later and asked if she wanted a manager’s presence to meet with the care home and this was also declined. The following day the complainant told the respondent about the meeting in the care home when she said she had received an apology from and shaken hands with the alleged harasser. The respondent considered the matter had been dealt with. I accept they took such steps as are reasonably practicable at this time.

The nature of the complainant’s employment was that she was offered hours/shifts on an as and when basis. They operate a “Do Not Return” system where a client can request that an employee no longer be placed on their site. A few days after the incident on 4 December the care home initiated a “DNR” for the complainant. They did not question this with the care home but tried to place her elsewhere. The complainant did not want to work in the other locations offered and the respondent then had no work for her.

There was a meeting with the complainant on 10 January 2019 at which she repeated the claim of sexual harassment and made two further complaints in relation to the care home, she also made a complaint regarding the client where she worked on 3 January. The respondent said they would investigate the claims and asked the complainant for a written statement, but this was never provided. The respondent was unable to offer the complainant any further work.

I am satisfied the respondent would have commenced an investigation if the complainant had provided a written statement.

I can find nothing in the evidence provided that amounts of victimisation within the meaning of section 74A of the Employment Equality Acts, which defines victimisation as adverse treatment as a result of making a claim of discrimination.

CA-00026436-003

I can find no evidence that amounts to an unlawful deduction within the meaning of the Payment of Wages Act and this claim is not well founded.

CA-00026246-002 & CA-00026346-004

The complainant gave no separate evidence in relation to the disputes under the Industrial Relations Act.

CA-00026246-001

For the reasons given above I find that the complainant has not made a prima farcie claim of Sexual harassment or victimisation within the meaning of the Employment Equality Acts and the claims are not well founded

CA-00026246-003

For the reasons given above I find that the claim under the Payment of Wages Act is not well founded.

CA-00026246-002 & CA-0026246-004

As the complainant put forward no evidence in relation to these disputes that was not made as part of the above complaints, I am not in a position to make a recommendation.

Sexual harassment