Complainant

Respondent

Anonymised Parties

A Shift Supervisor

A Manufacturing Company.

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-00031872-001

29/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-002

29/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-003

29/10/2019

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

CA-00033251-001

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-002

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-003

18/12/2019

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

CA-00033251-004

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-005

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-006

18/12/2019

The issues in contention concern allegations of Discriminatory Dismissal, Discrimination on Gender grounds, Victimisation, Conditions of Employment and Sexual Harassment. In addition, allegations of breaches of the provision of the Protection of Part Time Work Act, 2001 and Terms of Employment Information legislation were also made.

Act

Complaint/Dispute Reference No.

Summary Complaint

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

CA-00031872-001

The Complaint alleged that she was Discriminated against on grounds of her Gender, was Victimised by reason of raising a complaint against a Contractor, was Discriminated against in Conditions of Employment and was subject to Sexual Harassment by a Contractor who came on site. The Contractor was a lorry driver who came on site to collect / deliver product from the Company. The Complainant made a formal complaint to the Respondent.

An investigation was held but it was unsatisfactory. The Respondent failed to address these issues in any realistic manner. The provisions of S.I. No. 208/2012 - Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 did not apply in any sense.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-002

The Complainant was never given a statement of terms and conditions of employment.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-003

The Complainant was never informed in writing of a change to her Terms and Conditions.

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

CA-00033251-001

This is a repeat of -CA -00031872-001

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-002

This is a repeat of -CA -00031872-002

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-003

This is a repeat of -CA -00031872-003

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

CA-00033251-004

In this complaint, which is supplementary to CA -00031872-001 the additional allegation of Discriminatory Dismissal is made.

The Complainant’s employment was alleged to have ended on or about the 21st August 2019. It was a Discriminatory Dismissal as other employees with shorter service and a different gender were maintained in employment.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-005

The Complainant’s Hours of Work were reduced while those of Full-Time employees were maintained.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-006

The Complainant was dismissed while full time employees were continued in employment.

Act

Complaint/Dispute Reference No.

Summary Respondent Response

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

CA-00031872-001      The Complaint alleged that she was Discriminated against on grounds of her Gender, was Victimised by reason a raising a complaint against a Contractor, was Discriminated against in conditions of Employment and was subject to Sexual Harassment

The Respondent rejected the Complaints of Gender and Conditions of Employment discrimination. It was accepted that the Complainant was the only female on the site, but she had always been specially facilitated with reduced physical demands and reduced working hours. In relation to the Sexual Harassment claim this had been vigorously investigated. Numerous witness statements had been included with the written evidence. The perpetrator was not a Respondent Employee – his employer had been contacted and his employer warned about his behaviour. The alleged perpetrator had been moved off the site and special rules been introduced restricting visiting drivers access to the Plant. The Respondent felt that the matter had been addressed fully and properly.

In relation to Victimisation this was without any grounds. The Respondent business had experienced a major downturn as a result of UK customer issues. The Complainant had, as a result, her hours reduced and eventually was laid off permanently. This was a business matter and there was no link what so ever to any Sexual or other allegation made or complaints raised.

The Conditions of Employment complaints were likewise linked to an allegation that the Complainant as a Part Time worker was let go before full-time staff. The business had experiencd a major downturn and letting part timers go first was a normal business decision.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-002 Statement of T & Cs

Respondent accepted this. The offence was a purely technical matter and the impact on the Complainant was immaterial.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-003 Change to her Terms and Conditions

No change had ever taken place. In early 2019 some new employees had been recruited and the Complainant was asked to help train them. She had not been promoted to a Supervisor position as suggested and no change to her employment status had taken place.

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

CA-00033251-001

This is a repeat of - CA -00031872-001

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-002

This is a repeat of -CA -00031872-002

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-003

This is a repeat of -CA -00031872-003

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

CA-00033251-004 Discriminatory Dismissal

There was no possible rationale for this allegation. The Respondent relied heavily on a major UK client. This UK Company had been sold and break in orders to the Respondent had followed. The Respondent had no work for most of his staff and the Complaint had been initially laid off on a temporary basis. Things had not improved, and the layoff had to become permanent. There was absolutely no basis for a suggestion that the Respondent had acted in a Discriminatory (as understood by the Employment Equality Act,1998) fashion.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-005      The Complainant’s Hours of Work were reduced while those of Full-Time employees were maintained.

The business of the Respondent had suffered a major decline. To address cost the payroll had to be reduced drastically and all employees were impacted upon. The Part Time workforce as not discriminated against in any way.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-006      Full time employees were continued in employment.

The impact of the business downturn was felt across the board of the company. It was hoped to be a temporary setback and naturally some full-time employees were kept on to essentially keep the business ticking over albeit with very little work.

As there are 9 Complaints (counting duplicates) in this Adjudication, I will deal with the Equality/Discrimination complaints first followed by the related Information complaints and finally the Part Time Work Act, 2001 complaints.

3:1       The Relevant Law, Employment Equality Act,1998, Discrimination and the Burden of Proof in Equality cases.

Complaints CA-00031872-001 & CA -00033251-004  

Employment Equality Act, 1998 - Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being

1.       Is the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act? In other words, is she eligible to bring a claim?

2.       Was she discriminated against?

3.       Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

4.       Was she Sexually Harassed as per Section Section 14 of the Act?

5.       Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant 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 claimant 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 these 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.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2         Consideration of the Evidence

3:2:1       Sexual Harassment complaint –

The evidence was that a temporary relief driver for Company B engaged in behaviour of a Sexual harassment Nature towards the Complainant. Section 14 of the Employment Equality Act ,1998 refers.   For ease I quote relevant sections below.

Harassment and sexual harassment.

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,

(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 evidence it was stated that the Complainant was the only female employee in a workforce that fluctuated but could go as high as 30+ persons.

The alleged Sexual Harassment was from a relief delivery Truck Driver employed by Company B. The witness statements largely supported the Complainant. The Truck Driver had, it appeared, repeatedly pointedly stared at the Complainant and had attempted to engage her in conversation and or unwanted physical contacts. She had initially ignored these upsetting behaviours but when the regular driver (again a Company B driver) returned she had explained it all to him. He had appraised the Owner of Company B and contact was made with the Respondent Managing Director. An investigation was launched, the Complainant was invited to make a full statement, which she did. Statements were taken from staff in the loading bay area.

Arising from this the Respondent issued a set of Instruction on the 11th July regarding the access of non-Company A staff to the Company premises. Drivers were to remain with their vehicles and not have any interaction with Company A staff not involved directly in loading or unloading.

The Respondent, in evidence, regarded this as effectively dealing with the matter. The Complainant alleged that despite the New Instructions the alleged perpetrator reappeared again and was wandering freely about Company A. This caused her considerable distress. The Respondent was irate with her when the issue was brought to his further attention. It was alleged that he stated that “That man (the driver) has to work as well”. The matter was largely regarded by the Respondent as dealt with and now closed.

In considering this situation regard has to be had to S.I. No. 208/2012 - Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.

In this case the Respondent had no policies on Sexual Harassment or indeed it appeared any Employee Handbook. In the Employee Induction correspondence there was a fairly comprehensive set of basic rules & safety instructions and a reference to duties under the 2005 Health Safety and Welfare at Work Act. There was no evidence of Employer Grievance policies or other issues.

In evidence from Mr. Xa, the Respondent MD, it was clear that the Respondent was a small, almost start-up Company, with effectively only one major product. They were operating from very basic premises with the offices being in a former Steel Container. At the time of the alleged incidents they were under serve commercial pressure. The MD came across as a credible witness, but a man engaged primarily with the challenges and survival of his plastic moulding business that HR Procedures.

The evidence of the Complainant was equally credible and her distress over the incidents was clear.

In final summary I came to the view that Sexual Harassment had occurred but had not been dealt with in line with the detailed requirements of section 14 of the Employment Equality Act,1998 or S.I. No. 208/2012 - Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.

In the Respondent’s favour is that a speedy investigation took pace and clear steps were taken to prevent a recurrence.

It is important to note that the alleged Perpetrator was not an Employee of the Respondent, but the incidents took place on Company A property. Legal Precedents clearly indicate that the Respondent had a duty of care to his employees and is liable even if the Perpetrator was not their direct employee.

Compensation is due to the Complainant but of the lower order of magnitude.

Accordingly, as provided for in Section 79 of the Employment Equality Act, 1998 I award the sum of €2,500 as Compensation to the Complainant for breach of a statutory right.

This is not Renumeration or a Wages/Salary payment in any sense.

Taxation to be considered in conjunction with the Revenue Commissioners.

3:2:2         Discrimination of the Gender Grounds /Conditions of Employment

As stated above in Section Three (1) of this Adjudication – the Legal preamble, for a Discrimination claim to proceed it has to be grounded on good inferences. It does not have to be proven at the first stage but what is called a Prima facie case has to be made.

The Complainant was the only female employee and, as stated above, suffered sexual harassment. However, in this case having considered all the evidence I failed to see sufficient strong inferences to base a specific Gender Discrimination complaint.

All evidence pointed to the Respondent treating the Complainant very fairly and with consideration at all times.

The Conditions of Employment complaint focused largely on her ending of employment and again I did not see a specific Conditions of Employment Discrimination claim in the evidence presented.

In summary therefore, I did not accept these complaints as they failed, in my opinion, to establish a Prima facie basis on which to proceed.

3:2:3           Discriminatory Dismissal CA-00033251-004

The ending of the Complainant’s employment was effectively in the letter/e mail of the 31 October 2019 where the Respondent informed the Complainant that her Lay off would have to became permanent. This was due to business difficulties with a major UK customer. The Oral evidence of the Respondent Md., Mr Xa, was clear on this point. I found his evidence to be credible.

A discriminatory dismissal has to be founded on the premise that Discrimination existed.

As stated in 3:2:2 above and as discussed, I could not see the basis for a Prima facie case of Discrimination on any of the grounds cited.

A dismissal undoubtably took place. The Respondent Legal Advisor cited economic and redundancy grounds as the basis. From the evidence presented this appeared to be a valid case as opposed to any specific Discriminatory grounds as set out in the Employment Equality Qct,1998

Accordingly, I did not find that a Discriminatory Dismissal took place.

3:2:4       Victimisation

The Complainant alleged that she was Victimised following the Sexual Harassment incidents. She was publicly asked to do cleaning duties which she found humiliating. She suffered an injury on the 21st of August and received no hours of work afterwards. She was in receipt of Social Welfare payments. The Respondent maintained that the lack of work issue was due to the financial difficulties of the Company due to the UK Customer issue.

Victimisation is generally accepted to mean the Complainant suffering a series of retaliatory actions from an Employer due to raising, in this case a Sexual harassment, complaint.

On careful reviewing of all the evidence presented I could not see any concrete evidence that would justify the Victimisation complaint.

3:2:5     CA -00031872-002 Statement of T & Cs not provided.

This was accepted by the Respondent but in mitigation it was stated that the infringement was of a minor technical nature and the Complaint was not at any loss.

In compensation for a Breach of a Statutory Right I award the Complainant the sum of €250 as Compensation.

This is not any form of Wages or Renumeration.

3:2:6     Section 7 of the Terms of Employment (Information) Act, 1994 Change of Employment – revised statement of T & Cs not provided. CA -00031872-003

From the evidence presented I did not see that any change in Terms of Employment, in this case a formal promotion to a Supervisor position, had taken place.

Accordingly, this complaint is Not Well Founded and fails.

3:2:7   Section 16 of the Protection of Employees (Part-Time Work) Act, 2001   / Reduction in Hours of Work v/v Full Time Employees.   CA-00033251-005  

From the evidence, both Oral and Written, presented it was clear that the Respondent business experienced a significant problem v/v its main UK customer in August /September 2019. The UK customer had been subject to a takeover and the position of the new UK owners toward the Respondent was unclear at that time.

Reductions in Hours of Work across the board were inevitable and the Respondent was anxious to maintain what was effectively a skeleton staff drawn from amongst the full-time compliment to ensure that the Company remained in business until the UK customer issue was cleared up.

From the evidence I could not see any systematic attempt to act unfavourably towards the Part-Timers as opposed to the Full Timers, many of whom were also laid off.

Accordingly, taking Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 into account I accepted that the Respondent had a suitable Objective Justification to explain his actions.

The Complaint is Not Well Founded and does not succeed.

3:2:8       Section 16 of the Protection of Employees (Part-Time Work) Act, 2001   CA-00033251-006   Dismissal of Part-Time v Full-Time Employees.  

As set out in 3:2:7 above the situation in the Respondent Company was largely determined by the UK Customer issue. The Respondent had effectively only one major customer for its product and when commercial difficulties arose over the placing of orders due to the UK takeover situation it was clear that staff reductions would be inevitable.

From the evidence I could not see any systematic attempt to act unfavourably towards the Part Timers as opposed to the Full Timers, many of whom were also laid off.

Accordingly, taking Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 into account I accepted that the Respondents had a suitable Objective Justification to explain their actions.

The Complaint is Not Well Founded.

Act

Complaint/Dispute Reference No.

Summary Decision. Detailed arguments/reasoning in Section Three above.

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

CA-00031872-001 Equality and Discrimination complaints.

Compliant of Sexual Harassment found to be proven.

Compensation of       € 2,500 ordered.

Complaints of Discrimination on Gender, Conditions of Employment and Victimisation Grounds not upheld.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-002 No Written Statement of T&Cs

Complaint is Well Founded. Compensation of €250 is awarded.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031872-003 Change in Employment

Complaint not upheld.

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

CA-00033251-001

Repeat /Duplication of CA-00031872-001.

Complaint withdrawn.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-002

Repeat /Duplication of CA-00031872-002.             Complaint withdrawn.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033251-003

Repeat /Duplication of CA-00031872-003. Complaint withdrawn.              

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

CA-00033251-004 Discriminatory Dismissal

Complaint not upheld.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-005

Complaint not Well Founded

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033251-006

Complaint not Well Founded