EDA235

1.Appeal Of Adjudication Officer Decision No(s)ADJ-00030235 CA-00040397-002

BACKGROUND:

2.The worker appealed the Decision of the Adjudication Officer to the Labour Court on 25 May 2022. A Labour Court hearing took place on 29 November 2022. The following is the Court's Determination:





DETERMINATION:

This matter comes before the Court as an appeal by Richard Tóibín (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Employment Equality Act, 1998 against Sales Sense International Limited (the Respondent)

The Adjudication Officer decided that the Appellant had not been discriminated against on the gender ground and that he had not made out a complaint of sexual harassment.

Background

The Appellant clarified to the Court that his complaint was not a complaint of discrimination on the gender ground. He submitted that his complaint was

• 
  (a) that he had been sexually harassed on a training course which he attended at the commencement of his employment and

  (b) that he was dismissed on the fourth day of his employment when he attempted to make the Respondent’s HR department aware of the difficulties he had encountered on the training course. Those difficulties included the sexual harassment he had suffered and what he found to be an aggressive and challenging approach towards him on the part of the person delivering the training. He submitted that he was dismissed because he had made the Respondent’s HR Department aware of these issues.

The Respondent made the Court aware that the Appellant had referred a trade dispute with the Respondent relating to the manner of his dismissal to the WRC and on appeal to the Court under the Industrial Relations Acts and that the appeal remained in being.

The Complaint

The Appellant commenced employment with the Respondent on 28th September 2020 and attended a training course of the Respondent on that date and subsequently. He complained that the training course he attended was very unprofessional and toxic. He contended that the trainer, Ms K, allowed one of the ‘new hires’ to tell a joke which was perverted and rude and then proceeded to tell her own vulgar sexual joke.

He contended that on a ‘phone call to his line manager, Ms CG, in the afternoon of 1^stOctober 2020, he attempted to outline to her all that he had experienced in four days of training and to advise her that an incident had occurred between him and the trainer earlier that day. He submitted that he had experienced sexual harassment on the training course and had made Ms CG aware of that in the ‘phone call. He clarified to the Court that his allegation of sexual harassment related to the telling of a joke by a ‘new hire’ which was perverted and rude and the telling of her own vulgar sexual joke by the trainer.

He submitted that he attempted to raise as many issues as possible with Ms CG on the ‘phone call including a protected disclosure, bullying, sexual harassment and the breaking of a customer non-disclosure agreement. However, he submitted that Ms CG raised her voice, had shouted over him and had told him that she refused to listen to any more from him. Ms CG, who appeared very agitated in the ‘phone call, told him that he was terminated, that he no longer worked for the Respondent and that he would receive four days’ pay.

He contended that he had been sexually harassed and subsequently victimised as a result of having attempted to report that sexual harassment to the Respondent. The form of victimisation was his dismissal in response to his attempt to report sexual harassment.

The Respondent submitted that the Appellant had not made a complaint of victimisation or discriminatory dismissal to the Workplace Relations Commission at first instance and could not now be permitted to expand his complaint to include such allegations. The Respondent contended that the Appellant had alleged that he had been discriminatorily dismissed but had done so in a complaint made under the Industrial Relations Acts to the Workplace Relations Commission. His complaint under those Acts had been the subject of a recommendation in his favour under the Industrial Relations Acts.

The Respondent submitted that the Appellant had been dismissed after four days of employment due to his disruptive and argumentative behaviour during the induction programme provided by the Respondent.

Expansion of Complaint

The Respondent submitted to the Court that the Appellant had made no complaint under the Act as regards his dismissal. The Appellant submitted that he had complained of sexual harassment in the ‘phone call which led to his dismissal and did so repeatedly following his dismissal. He submitted that he had made such submissions at the Workplace Relations Commission and, whereas the Adjudication Officer had made no decision on that aspect of his complaint, this could not remove from him his right of appeal.

The Respondent submitted that the Appellant had referred a trade dispute to the Workplace Relations Commission under the Industrial Relations Acts concerning the manner of his dismissal and that the Adjudication Officer had made a decision in the matter which remained under appeal to the labour Court. He had not however made any complaint in relation to his dismissal under the Act.

In the absence of evidence from either party and in light of the fact that the parties appear to acknowledge the existence of a dispute between them in relation to the alleged discriminatory dismissal of the Appellant, the Court concludes, on the balance of probability, that the Appellant did put his complaint of victimisation by way of dismissal before the Adjudication Officer and that consequently his submission in that respect to this Court cannot amount to an expansion of his original complaint.

The Law

Section 14A of the Act provides: -

(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

• • (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.

  14A(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,

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

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

• “(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 85(A) of the Act places the burden on the Complainant of establishing a prima facia case (in this instance) that the impugned acts constitute victimisation. That section provides:

“85A.(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 him or her, it is for the respondent to prove the contrary.

• (2) This section is without prejudice to any other enactment or rule of law in relation

  to the burden of proof in any proceedings which may be more favourable to a

  complainant.

  • (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
  (4) In this section ‘discrimination’ includes—
  • (a) indirect discrimination,

    (b) victimisation,

    (c) harassment or sexual harassment,

    • (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

      (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.”

The Appellant submitted that he had been recruited by the Respondent on 28^thSeptember 2020 and on that date commenced training online for a role as a Residential Field Sales Executive.

He submitted that he found the training to be very unprofessional and toxic. Difficulties with communication and technology continued throughout the week. He e-mailed the trainer early on the second day of training to outline issues with communications and screen layout.

On the second day of training the attitude of the trainer to the Appellant began to harden. Between Tuesday the 29^thSeptember and Thursday 1^stOctober the trainer’s behaviour became very unprofessional. She ‘attacked’ the Appellant for not holding the same political views as herself.

Over the course of the training, she did not enforce company policy as regards dress codes and she smoked during training and allowed others to do so.

She permitted a ‘new hire’ to tell a joke which was perverted and rude and then proceeded to tell her own vulgar sexual joke. The Appellant was disgusted by the trainer’s behaviour.

When another employee made a sexual joke, the trainer called out the Appellant’s name even though he had not spoken.

These latter events were submitted by the Appellant to amount to sexual harassment within the meaning of the Act. He submitted that sexual harassment occurred on 29^thOctober 2020 and on 30^thOctober 2020.

On the last day of training the trainer was particularly aggressive. The Appellant and the trainer got into a heated discussion when she attacked the Appellant’s views during one of the exercises related to colour.

On the 1^stOctober 2020 the Appellant wrote to Ms CG who was his line manager. In that e-mail he referred to‘Incident in Training’and said ‘I would like to draw your attention to the fact that there was an incident between E and myself in training today before lunch’

The Appellant received a phone call from Ms CG that afternoon. The Appellant experienced Ms CG to be very agitated, forceful and rude. He told her that there was much he wished to share and that he was preparing a document for Ms CG and that he was concerned about a cover up due to management friendships and that he would prefer to write an account first.

Ms CG demanded that to know what happened and the Appellant began to tell her of all that he had experienced in the four days since he had started working for the Respondent.

The Appellant sought to do his best to share his experiences in training to Ms CG by phone as she had strongly insisted but she cut him off from speaking. She stopped the Appellant from sharing all that had happened saying she did not want to hear it. He raised as many issues as possible including a protected disclosure which included bullying, sexual harassment and the breaking of a client’s non-disclosure agreement. Ms CG raised her voice, shouting over him and she told the Appellant that she refused to listen to any more from him.

Ms CG, who appeared to be very agitated, told the Appellant that he was terminated, that he no longer worked for the Respondent and that he would receive four day’s pay.

When the Appellant told Ms CG that he would take legal proceedings, contact senior management and the Irish media she made a dismissive sound and said “yeah you do that”.

The following day the Appellant mailed Ms CM of the Respondent’s HR department attaching a list of questions he wished to have put to the trainer with whom he had experienced difficulty. The list of questions he conveyed to Ms CM included questions related to the incidents of alleged sexual harassment.

He received a phone call from Ms CM of the Respondent’s HR Department, who said that she wanted to hear about his experiences with the Respondent and he went through all of the questions he wished to have put to the trainer. He spoke with CM on 5^thOctober also.

He was assured there would be a proper investigation and that there would be no cover up. He was unable to state when exactly each of the instances of discrimination had occurred. He mentioned to Ms CM that he wanted to be compensated for the discrimination. He was under the impression that his conversations with her were part of an internal investigation into his allegations of wrongdoing.

On 6^thOf October 2020, he asked Ms CM for a written statement as to why he had been dismissed by the Respondent through Ms CG. Ms CM replied to him by e-mail at 4.30pm that day to say that

“I have decided that your employment should be terminated” “Issues: Behaviour at work deemed to be aggressive and disruptive towards others”.

The Appellant submitted that he was terminated for ‘blowing the whistle’ on the misconduct of the trainer and Ms CG to Ms CM.

The Court invited the Appellant to put before it any oral evidence he might wish to tender. The Appellant chose not to tender evidence under oath or by affirmation to the Court.

Summary of the submission of the Respondent

The Appellant commenced employment on 28^thSeptember 2020 and was required to undertake a training course to become proficient in the product he was selling, general compliance and sales principles. Throughout that training programme the Appellant was disruptive and argumentative. The trainer approached Ms CG, the Appellant’s direct line manager in relation to his behaviour.

The Respondent considered the Appellant’s length of service which was four days and dismissed the Appellant over the ‘phone on 1^stOctober 2020. The Appellant raised no issue as regards discrimination or sexual harassment prior to his dismissal on 1^stOctober 2020.

Following his dismissal, the Appellant e-mailed the Respondent’s press office and threatened that he intended to take legal action and would be seeking to make this a topic of conversation in the media.

The Appellant also emailed Ms CM of the Respondent on the 1^stOctober 2020. On that date Ms CM contacted the Appellant by ‘phone. He was aggrieved in relation to certain expenses he had incurred in relation to his taking up employment with the Respondent. Ms CM asked the Appellant whether they could come to an agreement with regard to those expenses. She also invited the Appellant to follow the Respondent’s formal procedures to allow her to investigate any issues he had.

On 6^thOctober Ms CM wrote to the Appellant and confirmed that he had been dismissed. The letter was accompanied by a copy of the grievance procedure and invited him to raise a grievance. The Appellant responded to say that the grievance procedure was irrelevant and he also threatened to contact the clients of the Respondent.

The Respondent referred to the case ofMelbury Developments and Arthur Valpeters (EDA0917)and asserted that the Appellant had not made out a prima facie case of sexual harassment. No allegations of sexual harassment were notified to it during the period of the Claimant’s period of employment. The Respondent also submitted that no other employees raised allegations of sexual harassment or misconduct following the training session at issue and that the Appellant e-mailed his line manager and trainer on the dates that he alleges discrimination occurred to give positive feedback.

The Respondent submitted that the decision to dismiss the Appellant was taken because he had been argumentative and obstructive on the training programme and was not connected in any way with any alleged report of alleged sexual harassment made to the decision maker, Ms CG.

The Court invited the Respondent to put before it any oral evidence it might wish to tender. The Respondent chose to tender evidence under oath from Ms CM.

Evidence of Ms CM

Ms CM clarified that she was the Head of Human Resources with the Respondent.

She clarified that she was not the decision maker in the decision to terminate the Appellant’s employment on 1^stOctober 2020. She confirmed that she had written to the Appellant on 6^thOctober 2020 and had stated in that correspondence that she had decided to dismiss the Appellant. She stated that this assertion in the letter confirming the dismissal of the Appellant was an error.

She Stated that she had first tried to contact the Appellant by ‘phone on 1^stOctober 2020. When she made contact with him she asked him to put any grievance he might have in writing. He did not put any grievance in writing.

The Appellant spoke to the witness the following morning and gave no detail to her of what had happened ion the training programme. It was not possible to investigate the matter in the absence of detail as regards when, who and where from the Appellant.

The witness had no recollection of a second ‘phone call with the Appellant.

Under cross examination the witness stated that she kept no notes of her ‘phone interaction with the Appellant but she did recall asking him to put his grievance in writing and that he did not do so.

The witness clarified that her letter confirming the termination of the Appellant’s employment did not advise him that he could appeal the decision to dismiss and she agreed that this was an error.

Discussion and conclusions.

The Appellant claims that he was subject to sexual harassment on the 29^thand 30^thof September 2020. He contends that he engaged with his line manager on 1^stOctober 2020 by ‘phone and that, in that call, he attempted to make her aware of a range of issues including his experience of sexual harassment on a training programme. He submitted that he had been dismissed on that ‘phone call and that assertion is not contested by the Respondent. He further submits that his dismissal amounted to victimisation within the meaning of the Act in that it was in response to his attempt to make his line manager aware of his experience of sexual harassment which, within the meaning of the Act, is discrimination on the gender ground.

The initial burden of proof in a claim of discrimination contrary to the Act rests, by operation of the Act at Section 85A(1), on the Appellant.

That section of the Act provides as follows in relation to the burden of proof resting upon a Complainant who alleges discriminatory treatment contrary to the Act:

• “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 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.”

InCork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

InWong v Igen Ltd and others [2005] EWCA Civ 142, (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

It is to be noted that the protection against victimisation is not confined to acts done in response to an employee having initiated a claim under the Act. It also applies in situations where, according to the Act at Section an employee“opposed by lawful means an act which is unlawful under this Act”. That can include making a complaint to an employer.

Moreover, this statutory provision must be interpreted in line withArticle 11 of Directive 2000/78 which provides:

• “Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”

In the within appeal neither party has placed evidence before the Court as to the events which are submitted to have amounted to sexual harassment of the Appellant on 29^thand 30^thSeptember 2020. The Appellant, who was present throughout those events made a submission to the Court setting out in sparse detail the nature of the events in question, i.e. the alleged telling of a joke containing sexual references and content by the trainer delivering the training programme and the telling of joke by a ‘new hire’. The Respondent did not contest in evidence or submission that these events had occurred and did not concede that they had occurred.

Similarly, the Court was not provided with evidence to assist it in determining the disputed facts of the ‘phone call between the Appellant and his line manager, Ms CG, on 1^stOctober 2020. The Appellant submitted that, among other matters, he raised a complaint of sexual harassment during that ‘phone call and contended that he was dismissed as a result. The Respondent provided the Court with no evidence from the decision maker in the decision to dismiss but did assert that no complaint of sexual harassment was made during that ‘phone call.

The Appellant made significant reference to e-mails and other events which occurred after the alleged acts of victimisation and sexual harassment. The Court however is concerned with the allegations of sexual harassment occurring on 29^thand 30^thSeptember and the alleged act of victimisation on 1^stOctober 2020 and not with events which post-dated those events.

The Court, on the basis of the submissions of the parties, and having regard to the fact that only the Appellant was actually present at the training programme and on the ‘phone call of 1^stOctober, concludes that the Appellant, on the balance of probability, has established facts from which an inference of discrimination can be drawn. Such an inference is not the only inference which can be drawn from the facts established, but it is, in the view of the Court, within the range of inferences which can reasonably be drawn. The Court having reached that conclusion, it is for the Respondent to prove that discrimination within the meaning of the Act did not occur.

The Court, having been provided by the Respondent with no evidence from any person directly involved in either the training programme or the decision to dismiss the Appellant, concludes that the Respondent has not discharged the burden of proof resting upon it to prove that discrimination has not occurred. The Court therefore concludes that the complaint of the Appellant has been made out.

Decision

The Court decides that the Appellant was discriminated against within the meaning of the Act. The decision of the Adjudication Officer is set aside.

The Court orders the Respondent to pay to the Appellant the sum of €10,000 for breaches of the Act, to be paid within six weeks of the date of this Decision.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
DC	______________________
03 February 2022	Chairman