Complainant

Respondent

Anonymised Parties

A complainant

A meat processing company

Representatives

James Egan, B.L., instructed by  Hamill Wallace & Hardy Solicitors

Siobhan McGowan Alastair Purdy & Co

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-00051176-001

15/06/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation, all were cross examined by the representative for the other party.

The complainant indicated that she would like the decision to be anonymised.  The respondent indicated its agreement on the basis that the complaint revolved around allegations of sexual harassment and that those allegations were untested and unproven and in all of the circumstances, anonymisation was appropriate.

The complainant worked in the respondent’s retail department from October 2021 until 3 February 2022 when she resigned.

The complainant submitted that she worked retail department from October 2022.  In December, additional staff from the ‘Cold Store’ were assigned to help out to assist with Christmas demand.

The complainant submitted that the behaviour of an individual, Mr E., caused her concern.  He began sexually harassing her by touching her, moving his hands on her person and remaining within her personal space, all of which was unwanted.

The complainant submitted that his behaviour was visible to co-workers, and she notified a supervisor of her concerns, and the supervisor notified the Human Resources department.  She was subsequently asked to a meeting with HR where she outlined her treatment.

The complainant submitted that she was assured of her safety and that her welfare was prioritised.  The complainant submitted that MR E was contacted by HR because that evening he approached her in the carpark and remonstrated with her.

The complainant submitted that Mr E continued to work beside her, and she submitted that in light of the failure to implement any changes, the applicant approached her boss. She submitted that her boss dismissed her concerns as ‘women's problems’.  The complainant submitted that in advance of Christmas while queuing for lunch a photograph was taken of her rear, and this was forwarded to her by another colleague.

The complainant submitted that the respondent failed to follow up with her regarding her treatment at the hands of its employees.  She submitted that her engagement with HR gave rise to an escalation in the harassment which undermined her position at work.  The complainant submitted that the respondents’ actions were ineffectual and failed to provide her with any safeguards from co-workers who perpetrated sexual harassment.

The complainant submitted that she was out of work for a number of weeks in January 2022 and wrote to further advance her grievance regarding her treatment however she received no response.  Following this she emailed her resignation to HR.  This was met with silence from the respondent who ought to have engaged with her.

The complainant submitted that this account of events amounts to a prima facie case of discrimination, she submitted that the harassment was on the higher end of the scale and that the respondent does not appear to have made any attempt to establish the facts by interviewing any witnesses.  Instead, it appears the respondent sought to assure the complainant that the parties would be separated but this did not occur.

The complainant submitted that at a local level management turned a blind eye to the conduct.  The complainant submitted that the respondents’ failures are similar to the case of A Complainant v A Hospital (DEE029, 9 October 2002). In that case the Labour Court held that the employer had a duty on being informed of the harassment to put in place such procedures as would enable a complainant to avail of working conditions free from discrimination.

The complainant submitted that she's entitled to redress as set out under the Act and sought compensation for the effects of an act of discrimination.  She noted that but for her treatment she would have returned to work having previously worked for five years.

In her evidence the complainant stated that she was working in the retail section in the run up to Christmas and that there was a changing room in common between the retail and the cold storage area. She outlined how you had to pass through the common changing room to access the toilet facilities. She noted that Mr E grabbed her by the neck and kissed her and noted that he had no right to touch her but that it happened twice once in the changing room and once in the office.

The complainant stated that she reported the matter to HR and was told that Mr E would be moved to the cold store.  The complainant noted that she only reported one matter to HR because, in relation to the second, Mr E apologised for his behaviour, and she raised it no further.

The complainant confirmed that she denied the offer of being accompanied to her car but also noted that she did not decline the offer. She noted that she was not a child and shouldn't have to be walked to the car.

The complainant stated that the policy on harassment was furnished to her previously and that she should have gone straight away to human resources but stated that she wanted and needed the job.

Under cross examination the complainant indicated that the human resources section met with her and put a plan in place. She noted that herself and Mr E were friendly, that this was not a crime, but she did not agree to any touching.  The complainant confirmed that she did not formalise any grievance and that she flagged no further allegations to human resources.  The complainant was asked “what did she expect human resource is to do” given that three days later was the last day of her employment. In response, she noted that her employer failed to make safe workplace and that Mr E should have been suspended or fired. The employer did not act on the allegation, and although they did take steps, they did not follow up the matter.

The respondent submitted that on 20 December 2021 the complainant approached the human resources manager and outlined issues with her co-worker Mr E.  She alleged he was upsetting her by way of text messages and being in her personal space and following her to the car park at the end of her shift. She stressed that she did not want to pursue a formal grievance.

On foot of this information Mr E was immediately reassigned back to his former role in the cold store.  The respondents admitted that the complainant was offered to be accompanied to her car in the car park while matters were being investigated but declined the offer.  The respondent noted that cold room and retail staff have different break times and accordingly there would be no occasion for the two parties to meet.

The HR manager arranged to speak to Mr E along with his supervisor on foot of these allegations. This meeting took place on 22 December. Mr E stated that they were text messages, and it was noted that while it was clear that some messages were deleted by the complainant, there was no message from her to her colleague asking that the texting cease.

The respondents submitted that the HR manager informed the complainant of what had transpired in the meeting and was informed by the complainant that she was satisfied.  Additionally, the complainant manager informed her to approach him should any further matters arise. It was submitted that her concerns were not dismissed as ‘women's problems’.

The respondent submitted that it had no knowledge of the incident in the canteen as this was not reported to it.  Accordingly, the only concerns conveyed to the human resources section related to text messages and Mr E walking the complainant to her car.

The respondent submitted that it does not hold any Christmas party events nor sponsor or endorse such occasions therefore the Christmas drinks event referred to by the complainant is a private matter not associated with the respondent.

The respondents admitted that the matter is raised with it were dealt with immediately and subsequently the Christmas holiday period intervened. The complainant failed to return to the workplace at all in January 2022 and following a period of sick leave for COVID she agreed to return to work on Monday 24 January. The complainant failed to do so and resigned thereafter on 3 February 2022.

The respondent submitted that the complainant has not established primary facts from which discrimination may be inferred. And submitted that immediately unbecoming aware of the conduct complained of by the complainant it took action to remove the alleged perpetrator from her work area and as the complainant did not wish to formalise a grievance and raised no ongoing concerns with the respondent, it used all reasonable efforts to resolve the situation.

The retail Supervisor gave evidence that his office is beside the retail floor, and he was constantly in and out of the area. He noted that it was not obvious to him that anything was going on as it just appeared to be friendly banter between colleagues.  He noted that although he was absent from the workplace on leave on 20 December, he was told about the incident alleged and discussed this with the complainant on his return on 21 December. He offered to escort her to her car, but she turned the offer down. The witness also denied that he dismissed her concerns as ’women's issues’. The witness stated that the complainant never approached him after that.

The witness clarified that when he called the complainant in his office to discuss matters, he had already raised the issue with the HR section.

The witness noted that the cold store employees were working in the retail space since 10 December. He clarified that the specifics outlined in the hearing were not outlined to him when the complainant and he discussed matters.

The cold store manager also gave testimony. He noted that he only sent staff out to the retail area when they were available and on an ad hoc basis.  He said that he was only on noticed of the allegations relating to 20 December and when they were raised with him, he brought Mr E over and told him an investigation would follow.  Mr E was removed from the retail room immediately. The witness noted that the retail room and the cold store had different breaks which were separated by about an hour.  The two section also had separate finish up and exit times.

The witness noted that a translator was brought into the meeting with Mr E, who denied the allegation put to him.  He said that Mr E genuinely engaged with the investigation. He said that there appeared to be a friendly tone in the texts sent between Mr E and the complainant. However, Mr E was warned to stay away from the retail room thereafter.

Under cross examination the witness noted that staff were moved from the cold store to retail in mid-December and although they shared a changing room, they were told to use a different entrance. In response to a query regarding notes of the meeting with Mr E, the witness confirmed that no notes were taken.

While the complainant gave her evidence, the timeline was very confusing and the evidence itself was contradictory in part. There was no clear outline given of when the various matters happened or of whether any matters that may have happened were raised with the respondent.  On the basis of this I did not find the complainant to be a wholly credible witness.  The witnesses for the respondent gave their evidence in a credible fashion and their testimony was supported by the complainant under her evidence in chief and cross examination.

The evidence of the witnesses for the respondent is that any matters raised were acted upon without delay. This is borne out by the testimony of the complainant.

I note that the issues raised during the hearing were reported to the respondent on 20 December.  Mr E was immediately removed from his duties and informed that an investigation would follow.  Although the retail supervisor was on leave on that date, he met with the complainant at the earliest opportunity, i.e., the following day.  He had notified human resources of the complaint and offered the complainant immediate assistance in that he offered to walk her to her car. She declined this offer. It should be noted that the witness who came across as credible outlined that only the issue of texting and waiting by her car were raised with him in the conversation of 21 December. The HR manager spoke with Mr E on 22 December and then met with the complainant who indicated she was satisfied. It was also noted that the HR manager asked the complainant to come to him should any further matters arise. She did not do so.

The complainant did not return to the workplace after Christmas due to COVID-19 and when the HR section contacted her indicated that she would return on January 24. She did not do so and submitted her resignation shortly thereafter never having raised the more serious allegations put forward in the hearing with the respondent.  The respondent noted that it acted quickly when allegations were reported to it and therefore was not remiss in its response.

As regards the respondents’ assertions that no prima fascia case has been put forward, having heard matters I am satisfied that those allegations which were brought to the attention of the respondent were dealt with in a quick manner. As to the effectiveness of the respondent’s approach to resolving the issues, it was not tested as the complainant did not return to the workplace.

Section 85A(1) of the Act states that:

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.

From the evidence before me I find that the complainant did not raise the more serious matters concerning touching and kissing with the respondent.  I am satisfied that the complainant’s concerns were dealt with in a reasonable fashion, without undue delay.  Having regard to S. 85A of the Act, I find that that the complainant did not raise facts from which discrimination may be inferred and the burden of proof does not fall upon the respondent.  Therefore, I find that the complaint of discrimination is not well founded.

Having regard to the request for anonymity on the part of both parties in relation to this decision, I am satisfied that the untested nature of the allegations put forward in regard to this complaint fall with the categorisation of exceptional circumstances and warrant anonymising the parties to this decision.

Having regard to all the written and oral submissions in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality – credibility of testimony – burden of proof – not well founded – no discrimination.