ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030235
Parties:
| Complainant | Respondent |
Parties | Richard Tóibín | Sales Sense International Limited |
Representatives | Self-represented | Lisa Conroy, Peninsula Group |
Complaint:
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-00040397-002 | 14/10/2020 |
Date of Adjudication Hearing: 10/02/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 79 of the EmploymentEquality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant contends that he was discriminated against by the Respondent on the ground of gender and that he was sexually harassed by a Trainer in a training course he undertook. The contention of discrimination on the ground of family status was withdrawn by the Complainant at the hearing. |
Summary of Complainant’s Case:
The Complainant gave extensive written and oral submissions, summarised as follows: I claim that Sales Sense International Ltd, failed to provide me with a safe place to work, that my right to dignity in the workplace was breached, & that I was harassed & bullied by Ms K, Specialist Trainer, & discriminated against by Ms G, Regional Sales Manager, my line manager, after I made a protected disclosure. I also claim that Managers Ms G and Ms M failed to act reasonably & fairly in their roles, & that they did not follow company procedures & the law, in relation to protected disclosures & the termination of employment, leading to my unfair dismissal. Sales Sense International Ltd. failed to live up to their Vision, expressed in the Employees Handbook, of staying true to their values of Teamwork, Inspiring, & Excellence, Sales Sense failed to honour the employment contract. I began training Monday September 28th 2020 for my role as a Residential Field Sales Executive with Sales Sense online, while residing at a Bed & Breakfast. I stayed from Sunday September 27th until Friday October the 2nd 2020. I found training with Sales Sense to be very unprofessional & toxic, & a dysfunctional work environment. This difficulty with communications & technology continued throughout the week of training. I wanted to speak with Ms G, my line manager, about what I was experiencing in training. As a new hire & having never met any of the Employees in person, I wanted to make my report in person with a written copy to backup my claims of wrongdoing in relation to Ms K, Specialist Trainer. On Thursday October the 01st 2020 I reached out & wrote an email to Ms G, from my Company email account, it was 10:54 in the morning, on the final training day, when I wrote “I’d appreciate if you could find some time to speak with me by phone tomorrow while I am travelling to collect the company vehicle.” Ms G replied, & for 20 minutes, we emailed about me visiting with her the next day, Friday 02nd October 2020. Things had gotten so bad in training that morning, that I had decided to email a report of Ms K’s wrongdoings to my line manager that evening & then speak to her by phone while travelling up to collect my company car. Ms K, Specialist Trainer, was particularly aggressive on the last day of training, I was chastised in front of the other new hires for the information I used during the Sales Presentations exams. My research was very thorough, & I was using the latest information. This appeared to annoy her greatly. We also got into a heated discussion where she attacked my views during one of the exercises relating to colour. During a break all the new hires watched her writing to Ms G about me, as she had continued throughout the week to share her screen inappropriately, I phoned her to tell her we could all see her screen. At all times throughout my employment, I followed the rules for Personal, Appearance & Etiquette, as laid down in the Employees Handbook, Attributes of a professional image. It was clearly expressed in the Employees Handbook along with the Health and Safety Policy, that all employees are responsible for ensuring & maintain the Company’s Vision. An hour later, 12:14, I wrote to Ms G, with the subject line: Incidence in Training. “I would like to draw your attention to the fact that there was an incident between Ms K & myself in training today before lunch.” That afternoon, October 01st 2020, I received a phone call from Ms G, my line manager, a few hours after my email regarding the incident in work. I experienced Ms G as very agitated, she was forceful & rude. She asked what had happened in the training between Ms K & myself. I told her that there was much I needed to share & that I was preparing a document for her that I would have ready as soon as possible. I explained that I was concerned about a cover up due to management friendships & that I’d prefer to write an account first. Ms G demanded to know what happened & I told her I would prefer to do so tomorrow when we met, she insisted I tell her immediately. I began to tell her of all that I had experienced in the four days since I had started working for Sales Sense. I sought to do my best to share my experiences in training to Clara Griffin my line manager, by phone, as she’d strongly insisted, but she cut me off from speaking as I replied, she stopped me from sharing all of what had happened, saying she didn’t want to hear it. I raised as many issues as possible, a protected disclosure, including bullying, sexual harassment, & the breaking of a non-disclosure agreement, there was much I wanted to say, now that the conversation had started, but Ms G raised her voice, shouting over me, saying that Ms K was working at Sales Sense for 15 years, she told me that she refused to listen to anymore from me. Ms G, my line manager, who appeared very agitated, told me I was terminated, that I no longer worked for Sales Sense & that I would receive four days’ pay. When I told her that I would take legal proceedings, contact senior management, & the Irish media, she made a dismissive sound & said “Yeah, you do that” & then cut the call. The Complainant gave sworn evidence following the administration of an oath. He stated that he had had over a hundred questions he wished to put to the Respondent’s managers and/or agents some of whom were not present at the hearing. He put questions to Managers G and M who went into evidence at the hearing. Many of the questions concerned morals, questions of understanding what was morally right and wrong. The Representative of the Respondent questioned the Complainant and objected to some of the questions posed by him. Following over 3 hours into the hearing, Manager M, when being cross examined by the Complainant stated that she still did not know what the trainer Ms K was accused of by the Complainant. |
Summary of Respondent’s Case:
The Claimant was employed as a Residential Field Sales Executive for a period of four days from the 28th of September 2020 to the 1st of October 2020. The Claimant has taken a claim under the Industrial Relations Acts alleging Unfair Dismissal and the Employment Equality Act 1998 alleging discrimination based on Family Status and Sexual Harassment. The Respondent denies these allegations.
Factual Background:
The Claimant was employed as a Residential Field Sales Executive on the 28th of September 2020. The Claimant as part of this role was required to undertake a training course in order to become proficient in the product he was selling and general compliance and sales principals. This training was conducted by Ms K. The Respondent submits that throughout this training the Claimant was disruptive and argumentative. The Respondent submits that Ms K approached Ms G, the Claimants direct line manager in relation to this. The Respondent will say that they took into account the Claimants length of service of four days and dismissed on the 1st of October 2020 over the phone. During the Claimants employment he was very positive towards Ms Killeen and Ms Griffin and emailed each party individually to convey this. The Claimant did not raise any issues of discrimination or sexual harassment to either Ms K or Ms G prior to his termination on the 1st of October 2020. The Claimant emailed the Respondents press office following the call which terminated his employment. The Claimant threatened the recipients of the Respondents generic press office email that he intended to take legal action would be seeking to make this a topic of conversation in the Irish Media. The Claimant in this correspondence threatened “I am giving you advance warning as there will be negative press for Sales Sense, & I will be discussing induction &training. Not only was there sexual harassment in the workplace, but also political discrimination.” The Claimant had not raised sexual harassment, political or familial discrimination prior to this. The Claimant on this date also emailed Ms M of the Respondent. The Claimant again threated legal action against the Respondent and forewarned them of a media campaign he was developing. In this correspondence the Claimant did not make any allegations of sexual harassment or political discrimination. Ms M gave evidence to say that she made contact with the Claimant that day by way of telephone. Ms M said that the Claimant was aggrieved he was let go during the training period as he had purchased a laptop and stayed in a B&B in order to attend the online classes. Ms M said that she asked the Claimant could they come to an agreement and assist with these expenses. Finally, Ms M said that she requested the Claimant follow the formal procedures to allow her to investigate any issues he had. On the 6th of October the Respondent wrote to the Claimant and confirmed his dismissal in writing. The Respondent again asked the Claimant if he would like to raise a grievance to allow the Respondent to investigate his issues. The Respondent attached the grievance procedure to this letter. The Respondent had not received any particulars regarding alleged sexual harassment or family status discrimination such as dates or comments to be able to investigate, the terms were just mentioned by the Claimant.
Ms M emailed the Claimant seeking an official grievance at 16:30pm. The Claimant emailed her back at 16:35 and threatened her that he would be “doing all I expressed to SalesSense”. The Claimant did not furnish the Respondent with any detail into his allegations. The Claimant again emailed Ms M at 17:03. The Claimant sought “material information” from the Respondent about alleged acts of sexual harassment and the employer’s failure to deal with them. The Claimant himself had not given any detail regarding the assertations he was making. The Claimant in this same correspondence stated that the “grievance procedure was irrelevant.” The Claimant also threatened to contact the Claimants clients. On the 7th of October Ms M asked the Claimant what information he specifically required. The Claimant responded on this date and did not let Ms M know what he was seeking, nor did he acknowledge that the Respondent asked the question. The Respondent informed the Claimant that he received their policies on the 21st of September.
The Claimant has taken claims under the Employment Equality Acts alleging discrimination due to his family status and sexual harassment. Section 85A (1) of the 2004 Act states; “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.” The Respondent refers to the Labour Court decision of Melbury Developments v Arthur Velpetters (EDA0917) where the Court, whilst examining the circumstances in which the probative burden of proof operates held as follows:–
“Section 85A of the Acts provides for the allocation of the probative burden in cases
within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. 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.” The Respondent submits that the Claimant has not made a prima facie case of discrimination relating to his family status nor has he made a prima facie case of discrimination. The Respondent submits that the Claimant has not established facts based on credible evidence. The Respondent further submits that the Claimant has only made mere bspeculation or assertions that he has not given any more detail. Sexual harassment is defined in the Employment Equality Act, 2004 as
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.
The Respondent submits that no allegations of sexual harassment were notified to them during the Claimants period of employment. The Claimant alleged that unsubstantiated and unspecified sexual harassment had occurred following his dismissal to the Respondent press office. The Claimant has not given any detail as to what these allegations were in writing to the Respondent to allow them to carry out an investigation. The 2004 Act goes on to state – “(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. The Respondent submits that they have a strict Bullying and Harassment policy within their handbook which contains a sexual harassment policy. The Respondent further refers to Nail Zone Ltd v A Worker, Labour Court Determination EDA 1023, 10 November 2010, which 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.” The Respondent submits that no other employees raised allegations of sexual harassment or misconduct following the training sessions that were attended by the Claimant. The Claimant himself emailed both his line manager and trainer on the dates that he alleged discrimination occurred to give positive feedback. The Respondent refers to 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.”
The Respondent submits that the Claimant has not established any facts in his correspondences to them nor his claim papers that would raise a presumption of discrimination. The Respondent is unable to respond to any allegations. The Respondent finally refers to Limerick County Council V Mannering ,EDA 1210,where the Court found that the respondent was permitted to rely on Section 14(A) (2)of the Act in the face of a single non-recurring act of racial harassment where an antiharassment policy had been disseminated during training and implications for disciplinary action in the case of non-adherence up to and including dismissal. The Courts views are instructive here. “the adequacy or otherwise of the investigation undertaken after the occurrence of the event complained of is irrelevant to the question of if the respondent had taken steps which could have prevented that event from occurring. Rather, in cases such as this, the focus should be on if the respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the respondent.”
Findings and Conclusions:
In this case, I must consider the Complainant's claim that the Respondent directly discriminated against him on the gender ground in terms of Section 6(1)(a) and 6(2)(a) of the Employment Equality Acts, and whether he was sexually harassed in terms of Section 14A of the Act .
Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:
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 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’’)
Section 6(2)(a) provides that
as between any two persons, the discriminatory grounds are, inter alia: (a) that one is a woman ant the other is a man (in this Act, referred to as ‘‘the gender ground’’),
It is contained in the Employment Equality Acts, that the burden of proof lies first with the Complainant to establish facts from which discrimination or less favourable treatment may be inferred and if those facts are established, then the burden of proof shifts to the Respondent to prove that discrimination did not occur. Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows: “(1) 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 her or her, it is for the Respondent to prove the contrary.” Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur. The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found 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”. In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down. The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis: First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination. Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination. Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed. However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination. In this instant case, the evidence shows: The Complainant did not submit any evidence of a comparator within which it could be inferred that he was treated less favourably on the gender ground. In his written and oral submissions and evidence, the Complainant submitted that the Respondent had acted in a manner that failed to provide him with a safe place to work, that his right to dignity in the workplace was breached, and that he was harassed and discriminated against and that he had made a protected disclosure. He also contended that the Respondent did not follow company procedures and the law, in relation to protected disclosures and the termination of employment, leading to his unfair dismissal. The matter of his dismissal is the subject of a separate WRC complaint and Recommendation under the Industrial Relations Act 1969 Reference ADJ-0037221. In this instant case, I find that the Complainant has not met the burden of proof of establishing primary facts that he could seek to rely upon to raise a presumption of unlawful discrimination. The Complainant has not established a prima facie case and I find his complaint that he was discriminated against on the ground of gender to be not well founded.
Section 14A of the Acts provide: (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. In this instant case, the Complainant raised no complaint of sexual harassment to the Respondent and no detail of such alleged harassment in clear terms with names of alleged perpetrators. The Complainant gave some general evidence of alleged unsavoury comments made during the course of his four day training course by some one or two persons. This I find cannot substantiate such a serious allegation of sexual harassment as levelled at the Respondent. I do not find his complaint to be 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.
The Complainant has not established a prima facie case and I find his complaint to be not well founded.
Dated: 19-04-22
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Discrimination on gender ground. Prima facie case not established. |