Complainant

Respondent

Parties

Paul  Uzell

Tom O Sullivan Trading as  Toms Lucky Trading

Representatives

Killian O Brien Bowler Geraghty & Company Solicitors

Donal O’Riordan BL

Ms Nora Cashe Peninsula

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044807-001

28/06/2021

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

CA-00044807-002

28/06/2021

The Complainant commenced employment as a Forklift Driver with the Respondent on or about 1st October 2019 and the employment it is alleged was terminated on the 5th of May 2021.

The Complainant alleged that he was sacked arising from stating that the Respondent’s partner was working without a visa and for asking for time off to attend a funeral.

The Complainant also alleged that the Respondent on nearly a daily basis would inappropriately touch him and make sexually suggestive comments to him.

His gross pay is €736 per week.

Tom’s Lucky Trading has been in operation since 2006, specialising in the sale and distribution of African fresh and frozen foods.

The Respondent refutes the allegations made against him that:

·       The Complainant was dismissed when he sought time off work to attend a funeral.

·       That he was discriminated against on the following grounds:

                                                         I.            Gender

                                                       II.            Sexual Orientation

                                                     III.            Harassment

                                                    IV.            Sexual Harassment

The Claimant alleges that the most recent date of discrimination was on the 27th of April 2021.

On or about the end of April 2021 the Complainant alleges that he was wrongly accused of mislaying or forgetting to account for a shortfall in daily cash takings amounting to about €54.

The Complainant couldn’t understand how the money was missing and gave the respondent the missing amount.

The Complainant stated that in fact he had given that money back to the Respondent in change and that he had made no error.

On or about the 5th of May 2021 the Complainant stated that he requested time off work to visit his uncle who was gravely ill.

It is alleged that the Respondent disapproved of the late notice and that he should have contacted his employer earlier.

When the Complainant arrived at work about 10.00 on the 5th of My 2021, he was ignored by a co-worker and later that day the Respondent asked to meet him. At this meeting the matter of the lost money was raised again, and the exchanges became aggressive. At that meeting the Complainant requested that he be allowed to attend his uncle’s funeral. It is alleged that this request was denied based on scheduled deliveries arriving that day. It is alleged that he was threatened and told that if he went to the funeral he needn’t come back. There were further heated exchanges, and it is alleged that the Complainant was then told to leave. It is alleged that this was summary dismissal.

The Respondent gave evidence that the relationship with the Complainant was positive.

The dispute now referred to the tribunal arose from a query about an apparent cash shortfall amounting to €59 on or about the 30th of April 2021.

The Complainant stated that he had been issued with a float by the Respondent’s partner and was returned later that day. The Respondent advised the Complainant that he wouldn’t be required to reconcile the invoices going forward as he did it anyway. In reply the Respondent stated that the Complainant stated he didn’t care and that he would make up the shortfall himself.

On or about the 1st May 2021 the Claimant attended the office and dropped €59 on the table.

On or about the 5th of May 2021 after the Public Holiday, the Respondent stated that he received a phone call in the morning from the Complainant to say that he wouldn’t be in work until 11.00am due to personal reasons.

When the Complainant attended for work it is alleged that he told a colleague who is also the partner of the Respondent that he was unhappy about the situation of the missing money. In turn that led to a further conversation between the Respondent and the Complainant, and that conversation became heated and abusive. It was also intimidating where it is alleged the Complainant pushed the Respondent’s chair in anger who is in is late 70’s. This in turn led to the Complainant leaving the premises and led the Respondent to believe he had left his employment and resigned. It was argued that Complainant walked off the job and that was confirmed by the subsequent emails and text messages received from the Complainant.

The Complainant has failed to establish a prima facie case of discrimination and to demonstrate facts that give rise to the presumption or inference of discrimination. No hypothetical or actual comparator has been identified with respect to the alleged discrimination on the grounds of gender and sexual orientation. In failing to identify a comparator the complainant has failed to show how he was treated less favourably to that comparator which is a fundamental requirement of the legislation. The Complainant has made an assertion and that does not meet the legislative burden to establish a prima facie case.

The Respondent denied that during the Complainant’s employment that he experienced unwanted verbal and non-verbal and inappropriate touching that violated the Complainant’s dignity. This conduct that is alleged to occurred frequently is denied. The Respondent denied as is alleged that he would grab the Complainant’s bottom and on occasions the Complainant’s testicles. This behaviour never occurred at the workplace, and it is denied that the last date of such conduct was the last week of his employment. The Complaint is opportunistic and was never raised while employed.

Unfair Dismissal CA-00044807-001

The factual matrix of this case relates to a charged and highly emotional atmosphere in a relatively small business concerning missing money and trust. The Respondent and Complainant in sworn evidence stated that they were close and had a very good working relationship. Over a relatively short period that relationship was strained based on allegations that in fact related to two amounts of money and the fact that it appeared that the Complainant was been reported on by the Respondent’s partner.

During the heated exchange I find that the evidence provided by the Respondent that his chair was violently pushed across the office did occur. This man is not in good health and in his 70’s.

I also find credible the sworn evidence of the Respondent’s partner that the behaviour of the Complainant was highly hostile towards her, and the threats made by the Complainant that he would report her alleging that she was an illegal worker was solely because she was perceived to have reported him. This threat arose in the context of missing amounts of money.

It appears on the facts that the Complainant left the job. However, what occurred did arise during a highly charged and hostile exchanges that did give rise to the Respondent’s chair being pushed aggressively.

The Complainant stated that he was accused in the wrong. The fact that the heated exchange also occurred when he had lost an uncle and was being denied an opportunity to attend the funeral could only be seen as highly inflammatory. I find this version of what occurred to be exaggerated. The Complainant is the forklift driver and deliveries were arriving that day. He was asking for leave at very short notice. That was putting this business under a lot of short-term pressure. He was not being denied any leave rather what was being questioned was the fact that he was asking for that leave at such short notice. That fact along with the missing money in turn gave rise to a coolness and suspicion between the parties that once were close friends.

 I do find that the allegation of missing money, the perception that the boss’s partner had reported him, and the family bereavement gave rise to a belief that he was been unfairly treated. How that grievance played out was not acceptable and I find that the conduct of the Complainant was highly aggressive and in essence would amount to an allegation of gross misconduct requiring to be investigated.

The issue in this case is whether the Complainant resigned or was summarily dismissed.

The Respondent stated that he tried to reach out to the Complainant after he left. It is also argued that the Complainant in subsequent exchanges with the Respondent requested his belongings, wages, and any outstanding monies and this points to a resignation. The counter argument is that such requests could also arise where an employment was ended.

On the 7th of May 2021 it is alleged that the Respondent also received further communication from the Complainant where he thanked the Respondent and that he enjoyed working with him and while complaining about what the Respondent’s partner did to him was devious, that he accepted what happened was awkward and that an impression was given that he was moving on and wishing the owner well for the future.

Section 1 of the Unfair Dismissals Act 1977 as amended defines dismissal as:

“ dismissal”, in relation to an employee, means—

( a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

( c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The Employee alleges that his contract was terminated; however, that fact is in dispute.

Redmond on Dismissal Law 3rd Ed, at chapter 22 states:

Much of the hearing time at the Workplace Relations Commission or the Labour Court may be engaged in determining a dispute as to dismissal. As the EAT put it in Devaney v DNT Distribution Company Ltd:

‘... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention. We find, having regard to the relationship that existed between the parties prior to the termination and the claimant’s evidence that [the director of the respondent company] often expressed his feelings in very strong language, that the words uttered by [him] in an angry mood, did not amount to a dismissal and were never intended as such.’

The test, therefore, is objective.

A person’s disposition maybe argumentative or vocal. The question that must be asked was the behaviour a heat of the moment outburst and no more than that, based on frustration he walked off the job, or was it more and a clear and unambiguous communication about his intent to leave the job?

The fact of dismissal is in dispute. On the balance of probabilities, I find that the Complainant’s employment ended by reason of resignation. Bridges had been burnt, the encounter was more than heated and words spoken could not easily be forgotten. In theses circumstances I determine that it was the Complainant who left his employment and that it ended by reason of resignation.

Sexual Harassment CA-00044807-002

The Employment Equality Act 1998 as amended defines harassment at section 14 A as:

(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.

I note that in Employment Equality Law 2nd ed (Bolger, Bruton and Kimber) Round Hall Press the scope of harassment is defined and also under the Act what constitutes harassment, importantly it can be a single event.

It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. In addition, the definition of bullying which has been accepted by the Supreme Court and High Court refers to “repeated inappropriate behaviour” and specifically excludes a single event. There is no similar requirement in the definition of harassment or sexual harassment in the Employment Equality Acts. Therefore, a single complaint of harassment or sexual harassment can breach the Acts.

Sexual Harassment Free Standing Complaint:

At Chapter 12.22 the authors state that sexual harassment is actionable per se and does not require to be specifically linked to a discriminatory ground and it does not require a comparator:

In spite of contextualising harassment and sexual harassment as discrimination in the Directives, it is clear from the definitions of both that there is no requirement to locate a comparator to prove either harassment or sexual harassment. Indeed, it has been very significantly recognised by the High Court of England and Wales that harassment within European law is a free-standing ground of complaint, distinct from that of discrimination. Therefore, even if arguments were made that the perpetrator of the harassment would have behaved in the same manner towards a male employee as he did towards a female employee, such arguments would be irrelevant as there is no requirement to show less favourable treatment. This is tantamount to the recognition of harassment and sexual harassment being actionable per se, and broadens the circumstances in which harassment and sexual harassment can arise and establishes them as free-standing causes of action within European and Irish law. The express recognition of sexual harassment as a cause of action carries the potential to bring the hostile environment type of harassment beyond harassment on grounds of gender so as to protect female employees from degrading treatment within the workplace, such as being given the most menial of tasks

I note that the authors reference Irish Case Law as follows:

Prior to the transposition of the Directives in the UK, the treatment had to entail less favourable treatment on a protected ground in order to amount to harassment (s.1(1), Sex Discrimination Act 1975). For example, in Stewart v Cleveland Guest (Engineering) Ltd [1994] I.R.L.R. 440 (EAT), where it was held that a woman could not complain about pornographic displays at the workplace because a hypothetical man might also have complained. Similar arguments succeeded in an Irish case where discrimination due to sexual orientation was found not to constitute gender discrimination as a man would have been treated in the same way. See Brookfield Leisure Centre Ltd v A Worker [1994] E.L.R. 79.

However, in EOC v Secretary of State for Trade and Industry [2007] EWHC (Admin) 483; [2007] I.R.L.R. 327 at 332, the High Court determined that:

63. I am satisfied that:

i)S4A(i)(a) should be recast so as to eliminate the issue of causation and to facilitate the claims which may be capable of being made as referred to in paragraphs 29 and 36-7 above.

ii)S3A should be recast so as to eliminate the statutory requirement for a comparator who is not pregnant or who is not on maternity leave.

iii)S6A should be recast so as to provide that claims which are permitted by virtue of Denda and Sass should not be excluded.

64. I propose to deliver this judgment without making an order at this stage in respect of the relevant sections and/or the Regulations which led to them, but to give the Defendant the opportunity to consider the effect of my conclusions. I shall hear Counsel on the form of order.

The abstract provides a concise summary of the case made out and held.

The claimant commission applied for judicial review of the Employment Equality (Sex Discrimination) Regulations 2005 introduced by the defendant secretary of state.

The Regulations had made amendments to the Sex Discrimination Act 1975 in order to implement Directive 2002/73.

The commission argued that the amendments did not properly implement the Directive because (1) the new s.4A(1) of the Act impermissibly imported causation into the concept of harassment by the words "on the grounds of her sex"; (2) the new s.4A(1) wrongly required that the unwanted conduct had to be by reason of, or on the ground of, the complainant's sex; (3) the new s.4A(2) inappropriately imported an objective test into the definition of harassment; (4) they had failed to introduce liability on employers for discrimination by third parties; (5) they had impermissibly introduced the requirement for a comparator for the purpose of establishing discrimination on grounds of pregnancy, and that as it was not intended that there would still be a remedy for a woman complaining of discrimination by reference to pregnancy or maternity leave under s.1 of the Act in parallel with the new right under s.3A of the Act, the new section would offend against the principle of regression because it would reduce the protection previously available; (6) the new s.6A(7) excluded a claim for discrimination during compulsory maternity leave that the complainant had been deprived of a discretionary bonus and s.6A(3) and s.6A(4) placed a substantial limit on discrimination claims that could be made in respect of the additional maternity leave period.

Held

Application granted.

(1) It was the court's duty to construe statutes and regulations passed by Member States so as to render them compliant with a relevant Directive.

I am persuaded by that case law.

It is argued by the Respondent that the behaviour now complained of is opportunistic. That it arises from a context of acrimony. The conduct now viewed as unwanted conduct was in fact encouraged and must be viewed in the context of a working relationship that was also social and in fact constituted a friendship.

The evidence opened which is a phone recording of one incident does clearly raises an inference or presumption of a highly sexualised behaviour event at work between the Respondent and the Complainant. It also shows a Complainant laughing out loud and enjoying what would be viewed as very inappropriate behaviour.

The evidence particularly when the Respondent was cross examined does show that this conduct was more than a single event. This working environment could be characterised by frequent and ongoing conduct that was sexual in expression and conduct. The Respondent argued that this conduct was not unwanted and in fact was encouraged and seen as funny. That perspective is challenged and conduct such as touching the Complainants bottom and his testicles are cited as examples of such behaviour that was unwelcome. The discrimination in this case is alleged to be ongoing and continuous. On the balance of probabilities, I find that the conduct as alleged occurred and would constitute sexual harassment. As alleged the sexual harassment expresses itself in both language, physical expression, and contact. It is accepted that in some cases it was viewed as funny. However, the Complainant also stated that the line between what he found as funny, and offensive was crossed. I find the evidence of the Complainant credible, that the Respondent touched his bottom and testicles as true, that this conduct he found offensive and was unwelcome and it occurred frequently.

While this case is pursued under the grounds of:

         i.            Gender

       ii.            Sexual Orientation

     iii.            Harassment

     iv.            Sexual Harassment

I have determined that the allegation of sexual harassment is actionable per se having regard to the relevant case law cited.

I also must have regard to the fact that the Respondent was the Complainant’s supervisor and owner of the business. The lewd behaviour may have been tolerated to a point. While it is argued that it is only being raised now arising from the first complaint, that maybe so. However, that does not negate in any way the fact that sexual harassment did occur, it was continuing, it was demeaning and was unwelcome and frequently crossed personal boundaries to make it a degrading and an offensive working environment.

I determine that the Complainant was sexually harassed. In this case the comparator is any other employee, and an actual comparator is not required. What the Act requires is for all employees to work in an environment absent of sexual harassment. I also find that there are no policies, practices or procedures that would ensure such behaviour was sanctioned and proactively managed to present a robust defence.  

The Complainant in this case has met the Prima Facie burden. The phone recording demonstrated a manager who was clearly expressing himself in a very overt sexual manner. While the Complainant did laugh at the time, under cross examination it became clear that this is a working environment where normal personal boundaries are not respected. The evidence of the Complainant that personal and intimate parts was inappropriately touched is accepted. That conduct was ongoing. The Respondent viewed that behaviour as funny. However, it was not welcome on many occasions. One event is only required to establish a case of harassment. While a single incident can amount to harassment, I determine that the factual matrix of this case meets the threshold to establish a prima facie case of ongoing and continuing sexual harassment.

In turn I determine that the prima facie case has not been rebutted by the Respondent. The conduct on some occasions while viewed as humourous; on other occasions that conduct was unwelcome and crossed a boundary that amounted to demeaning behaviour and an affront to the Complainant’s dignity at work. The allegations have been clearly particularised and on the balance of probabilities based on the evidence of both parties I have determined that unwanted and unwelcome sexual conduct occurred that created a toxic and intimidating, hostile, degrading, humiliating or offensive environment for the person.

I note that at section 82 the Act provides for compensations as follows:

(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,

I also note the text at section 82 regarding numerous claims:

6) (a) The maximum amount of compensation specified in subsection (4) applies notwithstanding that conduct the subject of the investigation by the Director General of the Workplace Relations Commission] constituted—

(i) discrimination on more than one of the discriminatory grounds, or

(ii) both discrimination on one or more than one of such grounds and harassment or sexual harassment.

The Act clearly differentiates between discrimination on one or more of the specified grounds and as separate actions harassment and sexual harassment.

I do not find that the Complainant has made out a case for Gender discrimination or for Sexual Orientation. I find that while harassment did occur it was sexual harassment and therefore make one award as to do otherwise would amount to double compensation for the same breach.

No case has been made out concerning the effects of the conduct on the Complainant, other than that he found it offensive and unwelcome. There is an obligation on a decision make to ensure that an award is proportionate and effective.

The complainant earned €736 gross weekly wage. Having regard to all the circumstances of this complaint I award 6 months pay and determine that amount to be a proportionate and effective award.  I order the Respondent to pay compensation to the Complainant amounting to €19136.

Unfair Dismissal CA-00044807-001:

The fact of dismissal is in dispute. On the balance of probabilities, I find that the Complainant’s employment ended by reason of resignation. Bridges had been burnt, the encounter was more than heated and words spoken could not easily be forgotten. In these circumstances I determine that it was the Complainant who left his employment and that it ended by reason of resignation.

I determine that the Complainant’s employment ended by reason of resignation and that the Complainant was not unfairly dismissed.

Sexual Harassment CA-00044807-002:

The Complainant in this case has met the Prima Facie burden. The phone recording demonstrated a manager who was clearly expressing himself in a very overt sexual manner. While the Complainant did laugh at the time, under cross examination it became clear that this is a working environment where normal personal boundaries are not respected. The evidence of the Complainant that personal and intimate parts was inappropriately touched is accepted. That conduct was ongoing. The Respondent viewed that behaviour as funny. However, it was not welcome on many occasions. One event is only required to establish a case of harassment. While a single incident can amount to harassment, I determine that the factual matrix of this case meets the threshold to establish a prima facie case of ongoing and continuing sexual harassment.

In turn I determine that the prima facie case has not been rebutted by the Respondent. The conduct on some occasions while viewed as humourous; on other occasions that conduct was unwelcome and crossed a boundary that amounted to demeaning behaviour and an affront to the Complainant’s dignity at work. The allegations have been clearly particularised and on the balance of probabilities based on the evidence of both parties I have determined that unwanted and unwelcome sexual conduct occurred that created a toxic and intimidating, hostile, degrading, humiliating or offensive environment for the person.

I determine that the Complainant was sexually harassed and order compensation to be paid amounting to €19136 and amount equating to 6 months salary.

Dismissal in Dispute-Sexual Harassment