ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020428

Parties:

	Complainant	Respondent
Parties	Rene O'Reilly	Dublin City University

Representatives

none

Kevin Langford Solicitor Arthur Cox

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-001	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-002	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-003	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-004	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-005	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-006	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-007	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-008	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026970-009	11/03/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00027486-001	03/04/2019

Date of Adjudication Hearing: 16/12/2019, 17/12/2019, 15/12/2020 and the last documents were received on 19/01/2021

Workplace Relations Commission Adjudication Officer: Marian Duffy

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and 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. In making my decision I have considered the oral and written submissions presented by both the Complainant and the Respondent.

The Respondent’s solicitor raised the recording of meetings by the complainant with the Respondent and said that it was in breach of GDPR. I have no jurisdiction to hear any complaints under GDPR. The complainant stated during the hearing of this case that she had submitted these recordings to the WRC as evidence. I want to make clear that I did not receive or listen to these recordings and they were not part of my decision making process.

Background:

The Complainant was employed by the Respondent as a Foundation Programme Coordinator in the international office on the 27th of November 2017 and her employment terminated on the 5th of November 2018. She was paid €46,620 per annum. She is claiming that she was discriminated against, sexually harassed, victimised and dismissed on the gender ground contrary to the terms of the Employment Equality Act 1998.

Summary of Complainant’s Case:

The Complainant said she was employed as a grade 4 on a 3 year fixed-term contract. She worked administrative coordinator in the International Office in relation to running a foundation programme for international students. The programme is run for international students who do not meet University degree programme entry requirements. The course was run in conjunction with an International Education Company (Company E). The Complainant said that the programme was already in existence when she joined. She was told by the International Office Director (IOD), to whom she reported, that she would have 3 probation meetings, one on the 28th of February 2018, the 31st of May 2018 and the 31st of August 2018. She said that the probation meeting on the 28th of February was cancelled.

The Complainant said she joined the company on the 27th November 2017. She said IOD failed to make her aware of the problems regarding the programme when she joined. She said that the programme was not recognised or registered by the University’s Faculty or Registry. As a result, staff and agents experience real problems with all aspects of processing foundation student recruitment, applications assessment, enrolments, registrations and the classroom booking process. She said he also failed to tell her that there are hundreds of overdue student applications for undergraduate and postgraduate degree programmes. She said there was only one assessment officer in the international office from February 2017 onwards. She said she received no peer support or training even though IOD already knew she had not worked in an Irish University and was unfamiliar with the processes, the universities systems for student applications academic assessments and student recruitment and enrolment. She said that there was a delay of months in providing her with access to the Respondent’s computer systems. She said that she was not even provided with a desk on her first day in the office or introduced to her working colleagues. IOD failed to provide her with the correct instructions and access, and authority to make timetable classroom bookings for IFP students on the university systems resulting in bookings being cancelled and he became angry and frustrated with her when she sought his advice about it. She said it was the responsibility of IOD to train and to authorise her to make these bookings which he did not do. She said she finally resolved the problem herself.

The Complainant said that there was a tense relationship between IOD and company E and that he blamed company E for problems in recruitment to the foundation programme. In around April 2018, the Complainant said that company E, who was providing financial support to the University for her role and Mr K with whom she was dealing with, threatened to withdraw the funding and thereby threatened her continued employment. She raised it with IOD and he was slow to assure her about her employment and to tell her that Mr K had no right to speak to her like that as he was not an employee of the Respondent.

The Complainant said she had her first probation meeting with IOD on the 25th of May 2018. She said that IOD was attempting to blame her about legacy issues which were there before she arrived and when she tried to raise difficulties she was experiencing in carrying out her work and lack of support and training, he refused to allow her to discuss these at the probationary meeting. She said she also wanted to raise the poor atmosphere in the office and behaviours which she said was passive aggressive behaviour and she was not allowed to do so. She said she received the written assessment report following the probation meeting on the 7th of June 2018 and she responded on the 14th of June 2018 to the issues raised and pointed out the difficulties she had experienced operationalisation of the foundation programme and getting it validated/accredited in the University. Her training needs were identified in the probation report however she said she did not receive any training until October 2018 when she got training in Excel even though IOD stated in the report that this training was necessary to provide her with the skills necessary to fulfil her role.

The Complainant had a further probationary meeting on the 24th of September 2018 with IOD and it was also attended by Ms C who was taking over as line manager of the Complainant. She said that the probation meeting went well. She said IOD raised two issues which he said company E had with her, namely the response time to emails and the inappropriate tone in one other email. The Complainant requested to see the email to understand what was wrong, but IOD did not give it to her. She said they went through all aspects of her work and she believed there was no difficulty with the work other than the two issues raised by IOD and she was happy with meeting. She said she was given no indication at that meeting that she would not successfully complete her probation. At the end of the meeting a discussion took place about a picture hanging on the wall. The Complainant said she gave her view on one abstract picture and IOD said to her “I thought you said XXX.” The Complainant said it was an inappropriate and sexually explicit comment and she was shocked. She said that she rejected the harassment and corrected IOD and repeated what she had originally said. She said she was very upset about the comment which she considered inappropriate and left the room without saying anything further.

The Complainant said that IOD repeatedly disrespected her and was aggressive to her in front of other staff members. On the 26th of June 2018, she said that she had an encounter with IOD about arranging orientation for international foundation students. She said he was angry and aggressive towards her and refused to explain why he was so annoyed with her. She said that this happened in a public office and in front of other staff. On the 27th of September 2018 IOD was aggressive and disrespectful to her and harassed her during a discussion about a problem which occurred with classroom timetabling for the foundation programme. She said this occurred in front of other staff members and afterwards a male member of staff’s expressed shock to her and how she had been treated. The Complainant said that she went to IOD’s office and complained about his treatment of her and asked to be treated with respect. She also told him she was going to report him. She said she successfully resolved the issue about the timetable. After this incident she decided she would complain to her new line manager Ms C. She said she had a short meeting with her on the 1st of October to complain about being harassed. She asked Miss C to intervene with IOD she wanted the harassment to stop and that you would like the matter resolved informally under the policy. She said that she mentioned the sexual comment made by IOD to her at the end of the probation meeting, but she did not make a complaint about sexual harassment at that time because Ms C was present and knew what was said.

The Complainant said she received an email from Miss C on the 3rd of October 2018 telling her that she had spoken to IOD about the Complainant’s concerns about his conduct. She confirmed to the Complainant that one-to-one meetings would be with IOD in future and if there is a need to meet with IOD that she would also attend that meeting.

The Complainant said that after raising this issue with Ms. C. she was unexpectedly called to a probation meeting by IOD on the 2nd of October. She said that the tone of the meeting was completely different to the probation meeting of the 24th of September. She said that he read out a document critical of her performance on every issue which had been discussed in a reasonable manner at the previous meeting. He refused to give it to her until the end of the meeting. She said that she was blamed for legacy issues which proceeded her employment. The Complainant said that she was shocked at the content as it was negative feedback. The following day IOD wrote to her and she said that she was given 21 days to complete a series of actions for improvement. In the document she was warned that if her performance did not improve it could lead to her failing her probation and notified of another probation meeting on the 24th of October. She said there were also 2 other meetings with IOD in relation her probation. The Complainant said that she was also called to a meeting with company E and IOD allowed Mr. K to berate her over the response time to emails and the tone of one email. She said neither Ms C nor IOD intervened on her behalf to protect her against the attack from Mr K.

The Complainant said she sought advice from a union representative and following that she decided she would raise the harassment issue and the conduct of the probation by IOD informally and seek a meeting with the Employee Relations Manager, Mr D. her union wrote to Mr. D on the 5th October seeking a meeting and got no response. The Complainant said that she then emailed him seeking a meeting. As there was no response from Mr D the Complainant said that she requested a meeting with the VP External Affairs, Mr T. The meeting was eventually arranged for the 22nd of October with Mr. T. The Complainant attended with her union representative Mr H and the employee relations manager Mr D attended on behalf of the Respondent. She said that her union representative was not recognised by the Respondent and he could only attend the meeting as a colleague. She said that she outlined her complaints about bullying and harassment and IOD’s unprofessional and aggressive behaviour towards her, his conduct of the probation process and she reported that she was sexually harassed by his comment at the end of the probation meeting on the 24th of September. She also asked that IOD be removed from her final probation meeting which was due to be held on the 24th of October and the final probation assessment be delayed until her complaints were investigated.

IOD was removed from the probation assessment process and replaced by his boss Mr H. Mr D advised the Complainant about the procedure for taking her a complaint forward. She was advised that the probationary assessment would go ahead on the 24th of October and it would not be deferred pending the investigation of her complaints. She was also informed that the probation assessment would be conducted by Mr. H.

The Complainant set out her complaints in writing outlining all the grievances she had with IOD including her complaints about harassment and the sexual harassment. She sent them to the HR manager on the 26th of October 2018.

The final probationary meeting was held on the 24th of October 2018. The Complainant said she was given no opportunity to present her actions for improvement which IOD had asked her to prepare. She said that Mr H had a probationary report which he read out but did not allow her to respond to any of the issues that were raised about her performance. She said that it was a very unfair process. He told her that he was recommending that she not pass her probation and he gave her 24 hours to respond to the assessment.

Mr H confirmed in writing to the Complainant that she had not successfully completed her probation, and this may result in her contract if employment being terminated. He advised her that under Statute number 5 of the university she was entitled to make or a written submission as to the reason why she believed her employment should not be terminated. He extended the period for providing this submission by 24 hours to Friday the 26th of October 2018. The Complainant said she provided a written submission and declined the offer of making an oral submission. The Complainant said that she received a letter from the Deputy President notifying her of her dismissal on the 5th of November 2018.

Witness

The Complainant’s union representative Mr J., who is an employee of the university, stated that part of his job is to organised student orientation programme for international students. He was trying to organise the student orientation programme and in a discussion with IOD and the Complainant he witnessed IOD becoming very angry with the Complainant. He said that the Complainant came to him about a further incident which occurred in the public office. She told him that she had been subjected to public criticism by our IOD in relation to classroom bookings. Mr J said to book classrooms you must get access to the software system in which you have to be trained to get on to the system and the Complainant was not provided with such training. He said he advised her to speak to her new line manager about the problem. He said that the Complainant told him about the sexually offensive comment made at the end of the probation period.

The Complainant became concerned about her contract of employment and she sought advice from IFUT it was decided that they would seek a meeting with Mr D the employee relations manager to discuss the challenging and unprofessional behaviour in the workplace. He said he sent an email on the 5th of October 2018 to Mr T, but he did not get a reply. The Complainant then requested a meeting and she did not get a reply. She then emailed Mr H and he was on annual leave and the meeting was finally arranged for the 22nd of October 2018.

Mr J said that at that meeting on the 22nd the Complainant raised a number of grievances about the probation process and she complained about a sexually offensive comment made to her by IOD. She also informed the meeting that the comment was witnessed by Ms C. Mr. D told her that the matter would have to be raised under the dignity at work policy. He said he was in no doubt that the Complainant was raising a sexual harassment complaint. He said that they requested that IOD be removed from the probationary process and that probation assessment scheduled for the 24th October be delayed until the investigation took place of the Complainant’s grievance and her complaint under the dignity at work policy.

Mr H produce an eleven month probation assessment report and started to read it out. He said that there are probation guidelines on how to carry out a probation interview at these guidelines were not followed. The Complainant was not allowed to respond during the process and they were told they could apply any procedure they deemed fit. The Complainant objected to the document and asked when it was composed, and Mr H said he has written the document. Mr J said it was unusual that Mr H could write a 15 page document about the Complainant’s performance when he had not ever interviewed her about her work. The Complainant requested the documents upon which Mr H relied to make his report. He said that his documents are not given to her until she made a freedom of information request. The only document given to them at the meeting was Statute 5 document. The final report said that the Complainant had not performed to the standard and that she would be dismissed. He said she was not asked for a single clarification in respect of the job or allowed to ask a question and she was not asked for the actions for improvement which had prepared for the meeting. He said he was never at a meeting where a person was not allowed to reply or to ask any question. The Complainant was given 24 hours to respond to the report. He said of the Complainant was entitled to fair procedures and natural justice in relation to the conduct of the probation assessment and the termination of her employment.

The Complainant subsequently lodged a grievance and a complaint about sexual harassment he said he attended a meeting with her on the 2nd of November at which the grievance was investigated.

Summary of Respondent’s Case:

Submission

The Respondent submitted that the Complainant commenced employment on the 27th of November 2017 on a 3 year fixed term contract as a Foundation Programme Coordinator. She was employed as an administrative assistant in the International Office on a fixed term contract for three years and on probation for a period of 12 months. The Respondent carried out periodic assessments of the Complainant’s performance during the probation period. The Complainant’s first probation assessment took place on the 25th of May 2018 and it was conducted by the director of the international office, the Complainant’s line manager (IOD)

The Complainant’s second probationary assessment took place on the 24th of September 2018. It was conducted by IOD and the Complainant’s new line manager, Ms. C.

On the 5th of October 2018, the Complainant’s trade union representative contacted the Employee Relations Manager (Mr. D) seeking to arrange an informal meeting with the Complainant in relation to an urgent and alleged ongoing problem of unfair and challenging behaviour in the workplace. On the 22nd of October with Mr. D and the Vice President External Affairs (Mr. H) met with the complaint. At the meeting the Complainant outlined a number of complaints she had in respect of the probationary process and the conduct of the IOD and also, she made a complaint about an inappropriate comment made by IOD at the probation meeting, which she believed was sexist and gender specific. In a follow-up email to the Complainant, the Respondent stated that it had been agreed to remove IOD from carrying out the next stage of the probation assessment and that he would be replaced by Mr H. The email also stated that the complaint and the probation assessment process were separate, and it was not necessary to suspend the probation assessment pending the Complainant’s grievance been investigated.

The Complainant’s third and final probationary assessment took place at a meeting on the 24th of October 2018. The meeting was attended by the Complainant, Mr H and HR representative. The Complainant was accompanied by her union representative. In advance of that meeting IOD sent his final probation assessment form to Mr H in a draft form. After this meeting on the 24th of October 2018 Mr H emailed the Complainant a final probationary assessment form. In this email Mr H stated that he concurred with the assessment conclusion that the Complainant had not successfully completed her period of probation. The email also gave the Complainant an opportunity to make representations which would be considered by Mr H and who would then make a recommendation to the President or Deputy President.

On the 26th of October 2018, the Complainant submitted a formal complaint in relation to IOD’s management of the probation process and she also submitted a complaint to the director of HR alleging sexual harassment and direct and indirect bullying behaviour by IOD.

Mr H recommended to the Deputy President of the Respondent University that the Complainant did not pass her probation and the Complainant was notified of this decision. The Deputy President notified the Complainant of her dismissal on the 5th of November 2018 which was effective from the 2nd November and she was given one month’s pay in lieu of notice.

The Employee Relations Manager reviewed the complaints and initiated an investigation He wrote to the Complainant outlining the process and options for both a formal or informal investigation. Further correspondence ensued between the parties and the Respondent then notified the Complainant of its intention to conduct a formal investigation. The proposed terms of reference were rejected by the Complainant and her complaints were not investigated.

IOD Evidence

The International Office Director (IOD) said in evidence that the University entered into a service agreement with company E to recruit foreign students to the foundation programme which is designed to make up for any gaps in English or academic levels which the students may had before enrolling in Degree or Master programmes. The foundation programme was run on a pilot basis in 2017. It was decided that a coordinator was needed, and the Complainant was employed. The funding for the position came from company E, but the Complainant was employed by the Respondent. Her contract of employment stipulated that there was a probationary period of 12 months and probationary assessments took place every three months. The Complainant’s role was to develop the programme. He said that there was a difficult start to her employment as he had just returned from India and access to the computer system was not provided to her until January.

He said they had regular meetings and he believed he had a good relationship with her. There was an open door policy and the Complainant would come into him to discuss aspects of the programme. He said the probation assessment meeting did not happen in February for a number of reasons and the first probation meeting us on the 25th of May 2018. He said that they did not have a completed probation form ready for the meeting and he used the job specification as a basis for the assessment. At the review he said he highlighted what worked well and also where there were deficiencies in the Complainant’s performance, such as the coordination role. He said that Complainant was doing the administrative work associated with the role effectively, but that the Complainant has not developed relationships with the key stakeholders such as the faculty officer, registry and company E. There were regular meetings with Mr K from company E and as one of these meetings Mr K said if the project was not successful that he would withdraw funding for the Complainant’s position. He accepted that the Complainant was upset about this. He said he spoke to Mr K and told him that any feedback was to come back through him because the Complainant was employed by the Respondent.

He said he completed the probationary assessment form on the 7th of June 2018 and sent it to the Complainant. The Complainant expressed concerns that the content of the assessment did not reflect the meeting. She provided a written response to the issues raised on the 14th of June 2018. He said the Complainant address some of the concerns after the review and had meetings with the registry to address the registration of students on the programme as there was confusion amongst the team about how to go about it.

IOD said that at a meeting on the 20th of June 2018 with the Complainant the orientation programme for the foundation students was discussed he raised an issue about mixed messages as he understood that another staff member was dealing with this issue and not the Complainant. He asked her to check with the other staff to clarify the issue and the Complainant continued to discuss the issue. He said he brought the meeting to a close by saying “we are done we are done” as there was no point in continuing to discuss the matter. He said the following week the Complainant did not engage with him on any level. At a meeting on the 5th of July he checked with her about her workload and enquired if it was too high. The Complainant told him that he needed to find a way to work together professionally as the way he spoke to her was unprofessional and made her feel uncomfortable. He said he checked with her if her discomfort meant she could not approach him and raise concerns. She said she would continue to work with him on a professional basis and would continue to raise issues with him regarding the work. He said the relationship with the Complainant was professional after that but strained.

The next probation meeting was scheduled for the 24th of September 2018. The Complainant attended, and her new line manager Ms. C. was in attendance. The probationary assessment form was not completed for that meeting. He said there was some progress in the Complainant’s performance. He gave her feedback on two areas of concern, the turnaround time for emails and the tone of an email. These were issues which were raised in August by Mr K in an email. The Complainant requested a copy of the email. He said the meeting was very collegial and much more positive than he had anticipated, and he thought that the Complainant took on board the feedback. At the end of the meeting they moved to small talk and they discussed some pictures hanging on the wall. He said he made a comment “I thought you were going to say .....” in response to the Complainant’s comment about a picture, but it was not his intention to cause any distress to her. After he made the comment there was some laughter and the Complainant left the room. He said he was not made aware that the Complainant had an issue or was offended by the comment until early November 2018.

IOD said that on 1st October 2018, Ms C spoke to him and related a complaint from the Complainant about feeling uncomfortable reporting to him directly. He said that Ms. C told him that the Complainant did not want to interact with him because of his behaviour. He understood that the complaint was under the under the Respect and Dignity Policy.

On the 27th of September 2018 there was an issue about booking classrooms for the foundation course and he spoke to the Complainant about this and told her it could have been planned better. After that conversation the Complainant came to his office door and said she was not happy with the way he spoke to her and that she had witnesses to the conversation.

He requested a follow-up meeting to the probation meeting of the 24th September with the Complainant and Miss C on the 2nd of October to highlight his ongoing concerns about the Complainant’s performance and to provide her with some clear activities that needed to be addressed by her. He said the Complainant asked for the probation report, so she could to respond to the issues raised and he believes he provided to it to her on the 3rd of October. He then sent the Complainant actions for improvement.

On the 3rd of October 2018 he said he sent a note to the Complainant setting out areas where a performance needed to improve. He also informed her that the next probation meeting would be on the 24th of October 2018 and that if a performance did not improve it could lead to her not passing her probation. Following this the Complainant sought clarification of what was required two meetings with her and Ms C also attended. The Complainant was required to report back on her actions for improvement at the final probationary meeting on the 24th of October 2018.

Between the 12th of October, when he clarified the actions for improvement, and the 24th of October, the date of the final probation meeting, he said he received no further complaints about the Complainant’s performance. He said he arranged for her to get feedback from Mr K from company E on the 18th of October 2018 in relation to the issues he raised at the probation meeting. Mr K provided both positive feedback and then he raised feedback in relation to issues around response time to emails and the tone of email with the recruiting agents for the universities. He said that the meeting became heated and the Complainant objected to the feedback.

IOD said that he learned he would not be conducting the probationary meeting on the 24th of October from Mr H. who told him that the Complainant wanted him removed from the process and that she was going to put in a complaint against him. He did up a final probation report on the Complainant and sent it to Mr H on the 23rd of October. He said he checked with Ms C on the Complainant’s progress and it was concluded that there was no progress in the Complainant’s performance. He concluded that the Complainant was not performing at the level required for the role of foundation programme coordinator and in the light of this she had not passed her probation and that she should not continue in this role after the probationary period. He said that he did not know about the substance of the complaints until November when Mr T spoke to him about the grievances the Complainant had made. He was not aware of the sexual harassment complaint until the WRC notified the complaints to the Respondent in March 2019.

For these reasons the complaints could not have influenced his decision about the Complainant’s probation.

Witness Mr. H

Mr H, VP External Affairs, said that the Complainant sought a meeting with him and Mr D from HR in early October 2018. As he was on leave during this period, the meeting was arranged for the 22nd of October 2018. The Complainant’s substantive complaint related to IOD’s management of the probation process. She alleged that his behaviour was unprofessional during the process and he was confrontational and intimidating and he had made a false claim about her performance. She also claimed that she was refused appropriate training. She also complained about an inappropriate comment which she said was sexist and gender specific made by IOD on the 24th of September 2018 at the end of a probation assessment meeting. She requested that IOD be removed from assessing her probation and asked that the probation meeting scheduled for the 24th of October 2018 be deferred until her complaints were investigated. He said that the sexist comment was part of the reason for the request that IOD be removed from the probation assessment.

Following this meeting Mr D wrote to the Complainant and told her that IOD would no longer conduct her assessment and Mr H would conduct a probation meeting on the 24th of October. He also advised her that her grievances would be investigated separately. He also told her that it was not necessary to suspend the probation assessment pending the grievance issues being investigated.

Mr H said that he told IOD that was not familiar with the Complainant’s work, so it was necessary to consult with IOD. He met with him and a representative from HR and went through the Complainant’s probationary documentation. IOD completed a probationary assessment report and emailed it to him later that evening. On the 24th of October 2010, he met with the Complainant for the final probation assessment together with a union representative in his capacity of a colleague, HR, Ms C and a note taker. He explained to the Complainant that it was the third and final probation meeting and he then proceeded to go through the draft final probation report made by IOD. The Complainant requested an opportunity to respond, but he said he would not give her one and that she would have plenty of opportunity to reply in writing afterwards.

Having considered all the probationary assessment reports and the issues arising in each of them he told the Complainant that he was of the opinion that she had failed to pass her probation. He gave her 24 hours to respond to the report. He said that the Complainant objected but he believed it was plenty of time for her to respond. He then wrote to the Complainant enclosing a copy off the final probationary assessment and advice and advised her that under statute 5 of the University she could provide her views and why her employment should not be terminated. He extended the response time for another day and offered to meet her again so that she could make an oral presentation. The Complainant did not want to make an oral presentation and advised him she would submit her response in writing. Mr H said that having read the responses to the probation reports from the Complainant he was not satisfied that she has passed her probation. He advised the Deputy President by letter dated the 30th of October 2018 that she had not successfully completed her probation and requesting the termination of the employment. The Complainant was dismissed on the 2nd of November 2018. He said that the Complainant’s complaints referred under the grievance procedures were treated separately to the probation process and did not influence the decision to recommend the termination of her employment.

Legal submission

The Respondent’s Solicitor submitted that the onus is on the Complainant to establish a prima facia case in accordance with section 85(A)(1) of the EE Acts.

I was referred to the case of Southern Health Bboard v Mitchell [2001] DEE011. The Labour Court considered the evidential burden which the Complainant must discharge before a prima facie case is made out and stated:

“The first requirement of Article 4 of the Directive 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.

In Valpeters v Melbury Developments Limited [2010] ELR 64, the Labour Court considered the extent of the evidential burden which the Complainant must discharge before a prima facie case can be established and stated as follows:

“Section 85A of the Act 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. 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.”

It was submitted that the Complainant has failed to establish any evidence of sufficient weight from which it could be concluded as she was discriminated against on any of the grounds which she selected in her complaint form. Mere assertions of such treatment without support of any evidence cannot shift the burden of proof or provide a footing on which discrimination can be inferred. The Respondent submitted that she had not established a prima facia discriminatory treatment contrary to the Act.

Sexual Harassment

Section 14A off the EE Act provides:

(7) (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,

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.

(b) 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.”

In relation to the sexual harassment, the Respondent’s solicitor submitted that the alleged lewd comment about a painting is not an act of sexual harassment. The alleged comment was not directed at the Complainant, the alleged comment was made in the presence of another person who did not make any complaint in relation to the alleged comment. The alleged comment has had a completely disproportionate impact on the Complainant.

Based on the above definition, the act must contain three elements to constitute an act of sexual harassment: it must be unwanted conduct of a sexual nature, it must have the purpose or effect of violating a person’s dignity, and it must have the purpose or effect of creating intimidating hostility degrading humiliating or offensive environment.

The complaint made by the Complainant about the comment at the meeting of the 22nd of October was that the comment was sexist and gender specific and at that stage appeared to be dissatisfaction with IOD’s choice of words, as distinct to unwanted sexual conduct which violated her dignity. It was submitted that there was no reference to a complaint of sexual harassment either informal or formal raised by the Complainant at the meeting of the 22nd of October. It was submitted that the lewd words used to describe a painting was not of a sexual nature and therefore it fails on the first limb of the test for sexual harassment. Without prejudice to the foregoing, the Respondent submits that a remark, which was made by IOD in the presence of the Complainant and another person and which was not directed at the Complainant cannot have the purpose or effect of violating the Complainant’s dignity. In relation to the third limb, the Respondent submits that a once off remark cannot have had the purpose or effect of creating an intimidating, hostile to grading humiliating or offensive environment for the Complainant. Furthermore, the Complainant cannot, on these set of facts be described as a victim of sexual harassment as defined by section 14A of the Act.

Sexual harassment is defined in the European Commission Recommendation of the 27th of November 1991 and the protection of the dignity of women and men at work 92/131/EEC. Part 2 (Definition) of the Annex to that Recommendation states:

“The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual”.

The comment made was an isolated incident and the Complainant has not referred to any other act that she alleges constitute sexual harassment, or anything of that nature. The Respondent submitted that a single comment about a painting could not of itself constitute an incident of harassment that was sufficiently serious to be defined as sexual harassment. Moreover, the Respondent cannot be liable in respect of a once remark made by an employee.

The Complainant made no complaint about the remark until the 26th of October when she put in a written complaint. IOD was given no opportunity to apologise. If the remark caused such offense to the Complainant at the time it was made, he would have apologised. The first time IOD became aware of the remark was on the 11th of March 2019 when the Complainant submitted her complaint to the WRC. It was submitted that there were never any findings of sexual harassment and as the Complainant never participated in the investigation process. She objected to the process based on the terms of reference.

It was submitted that without prejudice to the Respondent’s submission that no sexual harassment occurred within the meaning of the EEA, the Respondent relies on the defence in section 14A(2) of the Act namely that it took steps to prevent sexual harassment. The Respondent has a policy to promote respect and dignity. It has a grievance procedure which is fully accessible to all employees. IOD had received equality training and he has given training to others when he had previously held the role of Director of Equality with the Respondent.

Victimisation

The Complainant’s victimisation complaint is that she was dismissed because she brought a complaint of discrimination and opposed an unlawful act under the act within the meaning of the Act. Victimisation is defined in section 77(2) of the EEA as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse

treatment of an employee by his or employer occurs as reaction to –

(a) A complaint of discrimination made by the employee to the employer,

(b) Any proceedings by a Complainant,

(d) The work of an employee having been compared with that of another employee

for any of the purposes of this Act or any enactment repealed by this Act,

(e) An employee having been a witness in any proceedings under this Act or the

Equal Status Act 2000 or any such repealed enactment,

(f) An employee having opposed by lawful means an act which is unlawful under

this Act or the said Act of 2000 or which was unlawful or any such repealed

enactment, or

(g) An employee having given notice of an intention to take any of the actions

mentioned in the preceding paragraphs”.

It is submitted that the Complainant’s claim of victimisation cannot succeed for a number of reasons:

(i) Her contract of employment was subject to a 12 month probationary period and her employment was terminated by the Respondent on the basis that she did not pass her probationary period and not by reason of the fact that she had made a complaint of discrimination under the Act or opposed any discriminatory act under Act;

(ii) The first indication of any complaint relating to gender was raised at a meeting on 22 October 2018 but the comment itself was not disclosed. By that time there had been two probationary assessment meetings with the Complainant – in May 2018, 24 September 2018 and on 2 October 2018 (revised probationary assessment form) recommending that she should

not pass her probation;

(iii) The complaint of a “sexist and gender specific” comment was couched as an “additional complaint” at the meeting on 22 October 2018. The primary complaint was in relation to IOD’s management of the probationary process.

(iv) IOD was made aware by Mr. H on 22 October 2018 that a complaint had been made against him. His evidence is that he was unaware of any further details of the complaint.

(v) The Complainant did not submit a claim of sexual harassment until 26 October 2018 by which time the recommendation had been made to terminate her employment. IOD stated that he became aware of the grievance element of complaint while he was in India in November 2018 and the sexual harassment complaint was not raised with him until he returned at the end of November.

He became aware of the actual remark that is the subject of the sexual harassment complaint from the WRC complaint form in March 2019. There was no complaint of sexual harassment made by the Complainant to Ms C in relation to the incident of the 27th of September. The incident was a discussion between the Complainant and IOD in relation to a timetabling system and room bookings and was unrelated to gender and unrelated to the remark made by IOD about the painting at the end of the probation meeting.

It was submitted that in relation probationary report sent to HR on 28 September 2018., IOD’s evidence was that it did not reflect what needed to be improved on by the Complainant and on the advice of HR the probation report was changed. HR asked him if he had articulated to the Complainant that there was a possibility she would not pass her probationary period and following this he held a further probation meeting to advise the Complainant accordingly. It is refuted that the probation report was changed because of the issues the Complainant had raised with Ms. C

It was submitted that it was Mr. H who recommended that the Complainant should not pass her probationary period he was not the person who made the offending remark. There were clearly issues with the Complainant from a performance perspective throughout the course of her employment which predate the issue of the remark being made at the meeting on 24 September 2018. It submitted that for these reasons the claim of victimisation cannot succeed.

Findings and Conclusions:

The issues for decision by me are whether the Respondent discriminated against the Complainant on the gender ground in relation to conditions of employment, sexually harassed, harassed, victimised and dismissed contrary to the terms of the Employment Equality Act 1998 as amended.

Section 14A of the Employment Equality Acts, 1998 as amended on the gender ground. In reaching my decision I have taken into consideration all the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

…..

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom

he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee

access to opportunities for promotion in circumstances in which another

eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

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

….

(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.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis as a basis for a decision affecting that person.

…………

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12.

(7) (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,

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.

Section 15 provides:

(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.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.”

Section 74

“victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a Complainant,

(c) an employee having represented or otherwise supported a Complainant,

(d) the work of an employee having been compared with that of another employee

for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under

this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides:

"Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary."

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act 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.

The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 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 was no infringement of the principle of equal treatment.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was sexually harassed and discriminated against on the gender ground in relation to her conditions of employment and dismissal. It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case raised.

CA-0002670-001

Sexual Harassment

The Complainant alleges that she was sexually harassed after a probationary meeting on the 24th September 2018 when a comment of a sexual nature was directed at her by her manager in response to a comment she had made about a painting. She said that she rejected the sexual harassment by correcting IOD about what she said and that she was horrified and offended by the comment and left the meeting room. The Respondent accepts that the comment was made but it was not intended to cause any distress and that the Complainant’s reaction to it was dipropionate. It was submitted that the comment was not “of a sexual nature” and therefore fails the first limb of the test under section 14A(7) of the EEA. Also, the comment was made in the presence of another female and was about a painting and not directed at the Complainant and therefore could not have had the purpose or effect of violating the Complainant’s dignity and that a once off comment cannot have the purpose of creating an intimidating, hostile, degrading or offensive environment for her.

The Labour Court in the case of Nail Zone Ltd and A Worker Determination No. EDA1023, defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.”

S.I. No.208 of 2012 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012

The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the employee is no defence. The effect of the behaviour on the employee is what is relevant.

It is clear that the comment (which was disclosed to the hearing) was of a sexual nature and was directed at the Complainant. It was gender specific and inappropriate and therefore falls within the definition of sexual harassment under section 14A of the Acts.

It was submitted that the it was not the intention to cause distress, but the Code of Practice cited above provides that intention is not a defence and it is the effect on the employees that is relevant. I am satisfied from the Complainant’s evidence that she found the comment offensive and that it violated her dignity.

In considering whether a single sexually offensive comment constitutes sexual harassment under Section 14A, I have taken into account the comment made, the position IOD previously held as Equality Officer responsible for drafting and communicating the Respect and Dignity at Work Policy, the senior management position he now occupied and the management and controlled function he exercised over the Complainant and the fact that the comment was made at the end of the probation meeting. I am of the opinion therefore that it moves the comment to a more egregious incident. On the basis of the foregoing, I am satisfied that the Complainant has established a prima facie case of sexual harassment in relation to her conditions of employment contrary to section 14A of the Employment Equality Acts.

I must now consider whether the Respondent has rebutted the prima facie case raised. Section 14A (2) of the Employment Equality Acts, 1998, cited above, provides a statutory defence for an employer in claims of sexual harassment. This requires the employer to show that that it has a policy to prevent sexual harassment in the workplace. The Respondent claims that this provision of the Act provides them with a full defence to the claim because they have such policies in place.

I note that IOD was head of equality prior to taking up his role as Director of International Office and drafted and approved the Respect and Dignity Policy. In that role he was responsible for providing information on the policy to senior management and staff. Therefore, he should have known or ought to have known given his previous role that directing a sexually offensive comment at the Complainant could be construed as sexual harassment with the meaning of the EE Act. However, I note that the Complainant was directed to the policy by HR after she made her informal complaint and that after she referred a sexual harassment complaint it was referred for investigation by HR. The Complainant was dismissed before the investigation got underway and after an initial meeting with her the parties were unable to agree the terms of reference and the Complainant referred the matter to the WRC.

I am satisfied that the Respondent has effective policies and procedures in place to prevent harassment in the workplace and can avail of the statutory defence under section 14A(2) of the EEA. I find therefore the defence under section 14A(2) applies and the Respondent has rebutted the prima facie case raised by the Complainant.

CA-0002670-002

Conditions of Employment/Training

The Complainant submitted that she and other female employees were treated less favourably in relation to their probation than a male employee. She stated that he could apply for a permanent post before he passed his probation whereas she could not do so until she had passed her probation.

The Complainant must establish facts from which discrimination can be inferred in accordance with Melbury cited above. She has not provided any evidence that she applied for or was refused permission to apply for any permanent position. Therefore, I find that the Complainant has failed to establish a prima facie case that she was discriminated against in relation to this aspect of her complaint.

The Complainant also submitted that she was not provided with the training necessary to carry out her job. She submitted that her male comparator received training on all aspects of his job in the first six months of his employment whereas she was not provided with any training in this period. She said that she was new to the university and needed training in the policies and procedures. She said the Respondent failed to give her access to the computer system for the first 2 months of her employment. She said she did not get training in the Respondent’s systems such as ITS, CRM and PAC and neither did she receive training in Excel, Naric level one and two. She said this denial of training impacted on her ability to carry out the job. She said that she was not trained in classroom booking. She said IOD already gave her incorrect instructions on how to carry out this task. She said that before she could use the booking system she needed training in Scientia computer programme and she was unfairly criticised about a problem in booking classrooms in the October probation report.

While it is clear that the Complainant did not receive training in a number of areas, she has provided no supporting evidence that this occurred because of her gender. The Complainant must provide some supporting evidence that she was treated less favourably than a male was treated in similar circumstances. However, there are no supporting facts from which discrimination on the gender ground can be inferred. For this reason, I find that the Complainant has failed to establish a prima facie case that she was discriminated against in relation to this aspect of her complaint.

CA-0002670-003

Harassment

The Complainant claimed that she was harassed during the course of her employment with the Respondent. She raised a number of particular incidents which she said were harassment on the gender ground. She submitted that in June 2018 she had a disturbing encounter with IOD regarding the student orientation programme. She claims that IOD became angry with her and treated her disrespectfully

On the 27th of September 2018, while discussing with IOD an issue in relation to timetabling and the booking of classrooms for the foundation students, the Complainant said that the IOD in his criticism of her subjected her to unprofessional and humiliating behaviour in the public office. She said that she asked IOD to treat her with respect and told him that a colleague had witness his treatment of her. She said she raised this issue of harassment with Ms. C on the 1st of October 2018 who raised it with IOD.

The Complainant also said that IOD harassed her by calling probations meetings in October 2018.

The Complainant claimed that she was harassed on the gender ground in relation to the above mentioned matters. The first matter the Complainant must establish is that her complaint comes within the definition of harassment on the gender ground in the EEA Act. She has produced no evidence whatsoever to support her contention that there was link between the treatment and her gender. While the Complainant may have found the treatment of her disrespectful and intimidating, it does not constitute harassment on the gender ground within the meaning of the Act. I find therefore the Complainant has failed to establish a prima facie case of discrimination in relation to this aspect of her complaints.

CA-0002670-004

Victimisation

The Complainant claims that she was victimised and that she was dismissed from her employment for making complaints. She said that she reported an incident of discriminatory treatment and harassment by IOD which took place on the 27th Of September and after that he wrote inaccurate reports about her performance which led to her dismissal. She said that she made an informal complaint about sexual harassment on the 22nd of October and 2 days later she was dismissed. The Respondent said that the Complainant was not victimised or dismissed but she failed to pass her probation due to performance issues.

I am now going to examine the evidence to establish if the Complainant was subjected to adverse treatment as a result of making a complaint of discrimination pursuant to Section 74(2) of the EE Act.

The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

in considering whether a complaint of discrimination had been made in a victimisation complaint in the above case the Labour Court stated:

“It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts”

The first matter I am going to examine is whether the informal complaint of alleged harassment raised by the Complainant with Ms C constituted a complaint on a protected ground under the Act. I note that on the 24th of September 2018 that the offensive comment was made to the Complainant and on the 27th of September the Complainant believed she was harassed by IOD in relation to a problem with classroom bookings. I note that the Complainant met with Miss C on the 1st of October 2018 and raised a complaint about IOD’s conduct on the 27th of September and Ms C raised these issues with him on the 1st and again on the 2nd of October. The Complainant said that she did not raise a sexual harassment complaint at that time, but she made an informal complaint about harassment which she wanted to stop. She said that she was treated in a disrespectful and intimidating manner which she believed was gender based. IOD acknowledged in evidence that the complaints made to him were complaints under the Respondent’s Respect and Dignity policy about his conduct towards her. I also note that he stated in the probation assessment report for the 24th of October that the complaint raised was under the Respect and Dignity Policy and according to the report of the probation meeting on the 24th October, Ms C said that the issue raised was under the respect and dignity policy.

In order to determine whether this informal complaint of harassment raised by the Complainant can be construed as a complaint of harassment on one of the protected grounds under the EE Act or as stated by the Labour Court in Barrett above,” in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts” , I have examined the Respect and Dignity Policy.

I note that IOD was responsible for compiling the Respondent’s Respect and Dignity Policy which aims are to promote respect and dignity by preventing harassment and bulling and covers the 9 grounds under the EE Act. It states in the first paragraph under the policy intent: “DCU is a multicultural community that values and promotes equality and diversity across its organisation. The university does not tolerate unlawful discriminatory practices.” I am satisfied therefore that IOD understood that the complaint was one of discrimination related to a protected ground under the Act. I am satisfied that the informal complaint came within the ambit of harassment on the gender ground.

I have that the complainant was not harassed on the gender ground however protection against victimisation pursuant to section 74(2) of the EE Act does not depend on a successful complaint of discriminatory treatment as per the Labour Court in the Barrett case cited above. I will therefore examine the evidence to see if the complainant was subjected to adverse treatment.

The Complaint said that in relation to the probation meeting of the 24th of September 2018 that she was given no indication she may not pass her probation and she believed they had a successful meeting. IOD stated that the meeting was collegial and positive, and the Complainant had taken on board the feedback he provided. He said that he drafted a probation assessment report and sent it to HR. I note that a draft probation assessment was sent to HR by IOD on the 28th of September and that it did not contain any indication that the Complainant had failed her probation or that it was necessary to give her any warnings. I note that in the final probationary assessment document provided to the Complainant on the 3rd October in respect of the 24th of September probation meeting differed from the one provided to HR on the 28th of September and was more critical of her performance and statements about supports and activities in the future were omitted, but it indicated that she had not been given warnings for inadequacies. I note that the first written warning the Complainant received in relation to her performance was on the 3rd of October and 2 days after the Complainant complained about harassment. In that document she was advised of a probation meeting on the 24th of October. The document specified actions for improvement that she needed to achieve to pass her probation. IOD said that the draft probation document was changed on the advice of HR to reflect the deficiencies in the Complainant’s performance and to warn her if she did not improve she would fail her probation.

I do not accept this argument, surely if IOD believed the Complainant’s performance was not sufficient to pass her probation it would have been reflected in the initial probation report without an input on her performance from the HR manager, a person who did not manage or observe the complainant’s work. I also note that IOD intended giving the probation report to the Complainant on the 28th September and the only matter which occurred between then and the new probation report being drafted, and the Complainant being notified that she may fail her probation was that she had raised an issue under the Respondent’s Respect and Dignity Policy. I am satisfied that this raises an inference of adverse treatment.

I note that the Complainant met with Mr T and Mr D on the 22nd of October and raised a number of grievances including the conduct of the probation process, intimidation and confrontational conduct and sexual harassment. The Respondent submits that the Complainant made no complaint of sexual harassment either informal or formal at the meeting of the 22nd of October 2018 and that the primary complaint was in relation to the management of the probation process. I note that Mr T accepted in evidence that there was a complaint about a sexually explicit comment. Furthermore, the Complainant’s witness, Mr J who was at the meeting said that there was no doubt that the Complainant made a complaint about sexual harassment. I am satisfied that a complaint of sexual harassment was raised by the Complainant at that meeting.

I note that Mr T met with IOD on the 23rd of October and he learned that the Complainant had made complaints about him and that he would not be conducting the probation. He said that Mr H told him that the Complainant was referring a complaint against him. He prepared a probation report for the meeting the following day in which he determined that the Complainant had not passed her probation. He said that he did not know about the sexual harassment complaint and therefore it could not have any influence on the recommendation. I note that IOD said in evidence that he knew the Complainant had a meeting with Mr. H on the 22nd of October, I find it not credible that he did not ask Mr H the nature of the complaints given that he knew that she already had made a harassment complaint about him. He said that he had 2 meetings with the Complainant at which he clarified the actions for improvement and Ms. C told him before he wrote the report that there was no improvement, but the Complainant’s evidence was that she did not present the actions for improvement to Ms C because she did not get an opportunity. However, IOD’s evidence was that the Complainant had to present the actions for improvement which he gave her on the 3rd of October and after she made the informal dignity at work complaint, at the probation meeting on the 24th October. Recommending that the Complainant had failed her probation without clarifying whether the improvement required had been achieved raises inference of adverse treatment.

I note that IOD did not tell Mr T that the Complainant was preparing actions for improvement which she had to present at the probation meeting and which were central to her passing her probation. It is clear from the notes of the probation meeting that the Complainant was not given any opportunity to speak or present her actions for improvement or to verbally respond. I note that Ms C, who was now the Complainant’s line manager, cancelled a meeting with the Complainant the day before the probation meeting at which she intended to present her actions for improvement. The Complainant said that this deprived her of an opportunity to present her actions for improvement while Ms C told Mr. H that there was no improvement in the Complainant’s performance. Mr H said in evidence that he had his mind made that the Complainant had not passed the probation before he conducted the probation meeting. Therefore, the probation meeting lacked any objectivity or fairness in evaluating her performance as the decision had already been made that she had not passed her probation. I note the Complainant was given at first 24 hours and then 48 hours to respond and give her views on why her employment should not be terminated which she did, but the decision had already been made that she had not passed her probation. The alacrity with which the Complainant was notified that she had not passed her probation 2 days after she made a complaint about sexual harassment is significant. I note that an extension to the probation process can be granted under the Respondent’s Statute number 5 of 2010 Suspension and Dismissal of Employees and this was not utilised by the Respondent. I am satisfied, given the sequence of events leading to the Complainant failing her probation leading to her dismissal outlined above after the Complainant raised her first complaint of harassment on the 1st of October 2018, her subsequent complaint of sexual harassment on the 22nd of October 2018, the probationary meeting and dismissal, that she has raised a number of instances from which adverse treatment can be inferred which raises a prima facia a case of victimisation within the meaning of Section 74(2) of the Act.

I find therefore that the Complainant was victimised pursuant to section 74(2) of the EE Act.

CA-0002670-005 to 009

The Complainant referred a number of complaints claiming that she was discriminated against on the gender ground and victimised by the Respondent in relations to actions of a number of named individuals contrary to the Employment Equality Acts. Some of the issues raised in these complaints are duplication of the issues decided above. The complaints range from the handling, responding and investigating the complaints about the probation process, sexual harassment, harassment and dismissal.

I find that in relation to the remainder of the complaints that the Complainant has failed to establish a prima facie case of discriminatory treatment on the gender ground or victimisation. I find therefore that the complainant was not discriminated against or victimised pursuant to the EE Acts.

CA-000276486-001

In this complaint the Complainant claimed that she was discriminated against on the gender ground in relation to the date of her dismissal. She said that she was notified on the 5th of November that she was dismissed with effect from the 2nd November. She submits it was discriminatory treatment to backdate her dismissal. She also alleges that she was discriminated against after her access to the computer was disabled and denied access to information on her salary annual leave and hours of work.

I am satisfied that these complaints are misconceived, and I have dismissed these complaints pursuant to Section 77A(1) of the EE Act.

Payment of Wages 1991

The Complainant also claimed in the narrative of the complaint form that there was a breach the Payment of Wages Act because she did not receive information in relation to the date up to which she was paid in her final salary, details in relation to pay in lieu of notice and pay for annual leave. She is claiming that her salary should have been paid until the 5th of November as this was the date she was notified of her dismissal. As she was unable to check her annual leave she is not certain she was paid in full for any untaken annual leave

I note that the Complainant received a copy of the final payslip and an email dated 8th April 2019 giving a breakdown of the payment and a copy of her P45. It indicates the date of dismissal was the 2nd of November and she was paid up to that date. I also note she was paid for annual leave and paid a month’s salary in lieu of notice

For these reasons I find that this complaint is not well founded.

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.

CA-0002670-001 Sexual Harassment

I find that the Complainant established a prima facie case of sexual harassment in relation to her conditions of employment contrary to section 14A of the Employment Equality Acts. I find the defence under section 14A(2) applies and the Respondent has rebutted the prima facie case raised by the Complainant.

CA-0002670-002 Conditions of Employment/Training

I find that the Complainant has failed to establish a prima facie case that she was discriminated against in relation to this aspect of her complaint.

CA-0002670-003 Harassment

I find therefore the Complainant has failed to establish a prima facie case of discrimination in relation to this aspect of her complaints.

CA-0002670-004 Victimisation

I find that the Complainant was victimised pursuant to section 74(2) of the EE Act.

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the victimisation. Section 82(4) provides:

The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection(1)(c) or (1)(f) shall be—

(a) in any case where the Complainant was in receipt of remuneration at the date

of the reference of the case, or if it was earlier, the date of dismissal, an

amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the

Complainant would have received at that date but for the act of discrimination

or victimisation concerned, or

(iii) €40,000,

(b) in any other case, €13,000.

The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In deciding the amount of compensation, I note that the Complainant said that she worked in a University in Scotland before she took up the position with the Respondent. She said her reputation was ruined because of the dismissal and she was out of work for a year and lost her home. She retrained and got another job, but she no longer has job security.

The complainant was paid a yearly salary of €46,620. In accordance with Section 82 of the Act, I order the Respondent pay the Complainant €27,500 in compensation for the distress caused to her and the effects of the victimisation.

The total award is for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

CA-0002670-005 to 009

I find that in relation to these complaints that the Complainant has failed to establish a prima facie case of discriminatory treatment on the gender ground or victimisation pursuant to the EE Acts.

CA-000276486-001

I am satisfied that these complaints are misconceived, and I have dismissed these complaints pursuant to Section 77A(1) of the EE Act.

CA-000276486-001 Payment of Wages Act 1991

I find that this complaint is not well founded.

Dated: 10-05-2021

Workplace Relations Commission Adjudication Officer: Marian Duffy

Key Words:

Employment Equality Act, Discrimination on the gender ground, conditions of employment, sexual harassment, harassment, victimisation,