Complainant

Respondent

Anonymised Parties

A Cleaner

A Facilities Management Company

Representatives

Act

Complaint Reference No.

Date of Receipt

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

CA-00056183-001

10/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056183-002

10/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00056183-003

14/11/2023

At the outset of the hearing the complainant withdrew his complaint CA-00056183-003 under the Equal Status Act. The complainant proceeded with his complaints under the Employment Equality Acts and Minimum Notice and Terms of Employment Act.  

The complainant is alleging that he was discriminated against in his conditions of employment on grounds of his gender, civil status and sexual orientation. He states that he was subjected to harassment/ sexual harassment by his supervisor Ms A.  He further states that he was subjected to a discriminatory dismissal by the respondent.

The complainant states that he was employed as a cleaner with the respondent company and commenced work on 7 August 2022. He states that he was assigned cleaning duties at a Named Army Barracks in Dublin. He states that he carried out his duties to a very high standard.

The complainant states that an incident occurred in or around early February 2023 where he had lunch with his supervisor Ms A in the dining complex of the barracks and that Ms A told him she liked him and asked him out. The complainant states that he informed Ms A that he was not interested in anyone and had just come out of a 27-year marriage and was not interested in getting into a relationship.

The complainant states that after rebuking Ms. A’s advances, things went downhill rapidly. The complainant states that she became hostile towards him and kept telling him his work was not up to standard. In this regard the complainant alleges that he was harassed by Ms. A in his conditions of employment. The complainant states that subsequently Ms A purportedly had issues with him regarding not wearing the proper company uniform.

The complainant states that the previous December around Christmas time, Ms A phoned him and told him he was a brilliant worker. The complainant states that he also got much praise from members of the Army about the cleanliness in which the barracks was being maintained.

In relation to the company uniform, the complainant states that he only had one t-shirt and no trousers were issued to him by the respondent. The complainant states that when questioned about the t-shirt, he explained that bleach had been spilled on the shirt and although he requested a replacement of same, none was provided.  

The complainant states that he was excellent at his duties and kept the barracks spotlessly clean. The complainant states that he was a former soldier and took pride in maintaining the cleanliness of the barracks. He states that during his tenure with the respondent, he trained in 3 persons and they all ended up leaving as they could not hack the work.

The complainant states that he received many compliments from management at the barracks telling him “you are responsible for this place looking so good” and “you are the best cleaner we ever had” and therefore was baffled by his treatment by Ms A and his subsequent dismissal.     

The complainant states that within his role as a cleaning operative, there applied a 6 month probationary period which in his case would have been reached by 7 February 2023. However, the complainant states that having rejected Ms. A’s advances, she found fault with his work and his probationary period was extended by letter dated 23 February stating that the company decided to extend his probation period by a further 3 months up to 7 May 2023.

The complainant also alleges that he was discriminated against by the respondent on grounds of his gender vis a vis his female colleagues, in that, he was treated less favourably on the basis that he received less work uniform than his female counterparts.

In summary, the complainant is alleging that he was discriminated against in his conditions of employment, in that, he was harassed/sexually harassed on the basis of the alleged advances made to him by Ms A. The complainant alleges that having rejected Ms A’s advances she purportedly found fault with his work and that he was discriminatorily dismissed within short proximity thereafter. The complainant states that he was dismissed by letter dated 24 February 2023, one day after his probationary period had been extended on the basis of spurious reasons. The complainant states that he subsequently suffered with depression as a result of the discrimination carried out by the respondent.

In relation to the claim under Minimum Notice CA-00056183-002, the complainant states that he did not receive his entitlement to minimum notice upon the termination of his employment.

The respondent states that the complainant commenced working with the company as a cleaning operative on the 7 August 2022. He was initially contracted to work 30 hours per week over 5 days and was assigned to a Named Army Barracks in Dublin. The respondent submits that the complainant was living close to the Army Barracks. The respondent states that the complainant worked well initially but unfortunately, as happens from time to time, it was found that the quality of his work and his attitude to the job tapered off after a number of months, resulting in an issue with failed cleaning audits. The respondent states that the situation was contributed to by the complainant insisting on spending the bulk of his assigned work hours in the Brigade Headquarters building, and not enough in the toilet and shower blocks. It appears that he preferred to spend the bulk of his time in this area as he was, he claims, a former soldier. The respondent states that the complainant was repeatedly requested to devote an appropriate portion of his work hours to other areas but would not do so.

The respondent asserts that although technically outside of his 6-month probation period, the decision was made by the Operations Department to extend this in the hope that the standard of the complainant’s work and attitude might improve and in that regard, his probation period was extended on the 23 February 2023. Clause 9 of his signed Employment Contract states as follows “You will be on probation for an initial period of 6 months from the date your employment with the company [my emphasis] starts. Your probation period may be extended but it will not be longer than 9 months in total. Your performance will be monitored and reviewed during your probation period, and your employment may be terminated at any time during the probation period by the company [my emphasis] giving you notice, in line with the statutory notice periods outlined in this document. The provisions of the Unfair Dismissals Act 1977 – 2007 will ordinarily apply to this contract in the event of termination, but not in the event of termination during the probation period”.

The respondent submitted a cleaning audit sheet, devised by the client, where the complainant failed to meet the required standard of cleanliness of 80%. The respondent states that there were a number of failed cleaning audits in respect of the complainant but unfortunately having carried out a search, the company could only locate this one (cleaning audit sheet).

The respondent states that to compound matters, there was an issue throughout the complainant’s probation period in respect of repeatedly failing to adhere to the company uniform code and disregarding clear directions from his employer regarding specific areas to be cleaned, thereby failing to comply with clauses 28 and 11 respectively of his employment contract. The respondent submits that Clause 28 states “You are expected to keep your uniform laundered and ensure it is always in a clean condition when presenting for your shift. An employee who does not present to work in the correct, full uniform may be subject to disciplinary action and sent home until such time as the correct uniform is worn for work.”  Clause 11, which outlines the employee’s duties and responsibilities, states “Your position is that of general cleaning operative and you will be expected to perform all acts, duties and functions as the company may direct in that regard and to comply with such directions as are linked to your position and considered by the company to be reasonably consistent with such a position.” The respondent states that Ms A, the complainant’s direct supervisor, received several complaints from the client regarding the complainant’s persistent failure to wear the appropriate uniform whilst at work.

The respondent states that the work uniform comprises a blue t-shirt branded with the company logo, paired with dark work trousers. The complainant had from the outset been offered the work trousers but refused to wear them, opting instead to dress in the t-shirt supplied by the company paired with form-fitting cycling leggings, which was not acceptable. After discussions around the matter, a concession was made by Ms. A to allow him to wear jeans as an alternative, to which he agreed. However, whilst he did bring jeans to work he would leave the jeans in his locker and proceed to do his work while still in his cycling attire, having cycled to work. At one point Ms. A was asked by her procurement contact person at the Barracks, as follows: “Will you please ask the complainant {my emphasis} to dress appropriately going into the Mess. It is inappropriate, either you stop him or you get him out”.

The respondent submits that in a letter dated 24 February 2023, the company terminated the complainant’s employment. The respondent accepts that the letter did issue just one day after the letter to extend his probation period but states that an unpleasant altercation had taken place on 23 February, after the letter extending the probation period had been sent to him. The respondent states that the complainant was exceptionally disrespectful and verbally abusive to both his Area Manager Ms A and the National Operations Manager Ms B and this was the straw that broke the camel’s back. The respondent asserts that Ms. A asked the complainant to please stop shouting and cursing at her but he would not listen, shouting “Who are you to tell me what not to wear? I run this Barracks”. The respondent states that given the severity of the outburst and the fact that it took place onsite in the Barracks in the vicinity of several persons, the decision was made that the complainant’s behaviour was completely untenable and his exalted notion of his own importance could not and would not be tolerated any longer by the company.

The respondent submits that the complainant was given every opportunity to mend his ways and abide by the rules of the company and in reality was his own worst enemy. The respondent states that it is worth noting that the complainant’s behaviour was causing great stress to his Area Supervisor, who remained answerable to the client.

The respondent states that the complainant during the course of the hearing raised a number of issues that were not mentioned in his complaint form. In this regard, the complainant maintained that the reason his employment was terminated was due to his Area Supervisor Ms A allegedly propositioning him and when he refused her advances, she saw to it that he was dismissed. The respondent submits that this is very far from the truth of the matter and a deflection from the real reason that it was necessary to terminate the complainant’s employment.  The respondent states that Ms. A was extremely upset at this allegation and flabbergasted that the complainant had the audacity to proclaim such an intensely personal untruth, particularly given that WRC decisions are now published. The respondent states that Ms A stated under oath that this had never occurred. The respondent states that should such a matter be published it would cause her great embarrassment and she is concerned that it could have ramifications on her personal life. In those circumstances the respondent respectfully requests that given the sensitivity of this particular aspect of the matter, the decision should be anonymised.

The respondent states that in reference to the complainant alleging at the hearing that Ms A used inappropriate language towards him as an example “Aw feck off, you moany pig”. The respondent states that Ms. A takes great exception to this allegation as this is not how she addresses anyone. The respondent states that Ms A is well respected in contract cleaning industry circles, having built a successful career in this industry over the past 40 years.  The respondent states that last year she was promoted within the company from Area Supervisor to Regional Manager and now has responsibility for overseeing all of the contracts in the Eastern side of the country and fostering good client relationships.

The respondent states that in relation to the complainant’s Section 77 complaint of discrimination under heading CA-00056183-001, the respondent fails to understand the rationale for his belief that he was discriminated against in any way by his employer on grounds of his sexual orientation. The respondent submits that the complainant was not harassed nor was he sexually harassed. It states that the complainant was merely asked to conduct his duties in the areas requested by the company, while wearing the appropriate attire, as would any other employee of any gender. The respondent states that if the complainant genuinely believed he was discriminated against on the basis of gender or indeed on any one of the other discriminatory grounds under the Act, the onus was on him to provide a comparator which he has failed to do.

The respondent submits that under Section 77 of the Act of EEA 1998, the burden of proof rests with the complainant to prove that discrimination occurred and he has failed to do so.

The respondent states that in respect of the complaint of discrimination, the complainant also alleges that he was treated less favourably on grounds of his gender on the basis that he received less work uniform than his female counterparts. The respondent states that it is crucially important however to note that this particular complaint is mentioned nowhere in the complainant’s claim form. Where it is mentioned is in his Form ES.1 only and this complaint is misconceived as it pertains to Section 21 of the Equal Status Act of 2000. The respondent states that on that basis, the matters laid out by the complainant in the ES.1 but not referred to in the complaint form relating to the employment equality claim may not be used against the respondent company. The respondent states that it did not provide any less work wear than that normally provided to its female cleaning operatives.

In conclusion, the respondent states that the complainant has failed to establish a prima facie case of discrimination on the gender ground, civil status ground or sexual orientation ground and in those circumstances his complaint must fail. The respondent refutes the complainant’s assertion that he was harassed/sexually harassed in the course of his employment. The respondent claims that the company had adequate grounds for terminating the complainant’s employment.

The respondent maintains that in relation to the Minimum Notice claim CA-00056183-002, the complainant was given the statutory notice period of 1 week. In this regard, the respondent submitted a copy of the complainant’s last 3 fortnightly payslips to the WRC. The respondent submits that this claim must fail as notice pursuant to the legislation was properly given to the complainant.

Complaint under the Employment Equality Acts

The issues for decision by me are whether the complainant was (i) sexually harassed/ harassed and discriminated against in his conditions of employment and (ii) was discriminatorily dismissed from his employment.

In reaching my decision I have taken into consideration all the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.  

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

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

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.

It requires the complainant to establish, in the first instance, a prima facie case of discrimination. It is only when he has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.

The Law

Section 6(1) of the Employment Equality Acts provides that:

“discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would

be treated in a comparable situation on any of the grounds specified in

subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”

14A.—(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually

harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

…..

 (b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

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

Section 14 A (7) provides:

(a)(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

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.”

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

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

The complainant has claimed that he was harassed / sexually harassed by Ms A at a lunch meeting in or around early February 2023. While Ms A agreed that she had lunch with the complainant, she denies that she made advances towards the complainant or subjected him to harassment. Ms A states that issues relating to work were discussed at the lunch. Having heard the testimony from both parties, I prefer, on the balance of probabilities the complainant’s version of events. I found him to be a credible witness and I found that he was frank in his evidence at the hearing.

Based on the evidence heard I find that following on from the events of the day the complainant had lunch with Ms A where he states that he rejected her advances, Ms A found fault with the standard of the complainant’s work and started to chastise him about his work performance. I note that the complainant states that things went downhill rapidly from that point on, in that, Ms A suddenly had issues with him not conforming to the company uniform and spurious issues of underperformance on work issues and failed audit reports. I note from the information submitted there was no record of a note regarding not wearing the uniform and not meeting work performance standards. In this regard, there was no reference with regard to a verbal warning or written warning regarding his work attire or standard of duties performed by him.  Having very carefully examined all of the evidence adduced in the within claim, I find that the complainant has raised facts of sufficient significance to establish a prima facie case, in that, he has raised an inference of discriminatory treatment.

I find it difficult to reconcile the fact that although the complainant reached the six month probation period which was 7 February 2023; he received notice by letter on 23 February 2023 stating that his probationary period was being extended and subsequently was dismissed on 24 February with the respondent citing that the complainant had an unpleasant outburst with Ms A and another representative of the respondent on 23 February in earshot of a number of other staff members. The complainant denies that there were other staff members present on 23 February and states that while he was very annoyed, he refutes that he cursed and shouted abusively but stated that he was baffled and extremely anguished by the treatment meted out to him by Ms A and the company and felt that he was being penalised as a result of rejecting Ms A’s advances. 

Subsequent to the hearing, the respondent submitted a client audit sheet apparently the only one the company could locate in relation to where there was a failure by the complainant to meet the required standard of cleanliness of 80%; I note there is no name on the sheet in question and no date on the audit sheet. I do not find this argument by the respondent or the said document persuasive. I do not find it plausible that the respondent could only locate this one audit sheet.

I should state that following the hearing, the respondent submitted a letter from a person in the accounting administration section of the barracks stating that there were issues with regard to the complainant not wearing the uniform. Given that this witness was not brought to the hearing and the difficulty in the inability to test the evidence of this witness in this regard, I find that there are significant issues with the admissibility of said letter.

Based on the evidence heard, I find it difficult to reconcile the treatment of the complainant by the respondent in respect of the extension of probation on 23 February and the very next day on 24 February his dismissal.

In all of the circumstances in the within claim, I prefer the evidence of the complainant to that of the respondent’s witnesses. I find that the complainant has established a prima facie case that he was subject to unwanted conduct by Ms A and was treated less favourably in his conditions of employment on grounds of gender by the respondent in that he was subjected to harassment in the course of his employment after rejecting Ms A’s advances.

The law in relation to harassmentrefers to “conduct which 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.”

I find that the treatment of the complainant falls within the definition of harassment under section 14A of the Acts, in that, he was subjected to an intimidating and hostile environment.  While the respondent has argued that the complainant was dismissed on grounds of sub standard work performance, not wearing the uniform and an altercation with Ms A and another staff member on 23 February 2023; based on the totality of the evidence adduced, I am satisfied that the dismissal of the complainant was not unconnected to the harassment he was subjected to in the course of his employment by Ms A.

 In all of the circumstances of the within complaint, I find that the complainant was discriminated against on grounds of gender in his conditions of employment, in that, he was subjected to harassment contrary to section 14A of the Employment Equality Acts. I also find that the complainant was subjected to a discriminatory dismissal by the respondent.

Claim in relation to Minimum Notice & Terms of Employment Act

I find that the complainant did receive his minimum notice and in that regard I find that this claim is not well-founded.

I find that the complainant was discriminated against by the respondent on grounds of gender in relation to his conditions of employment and subjected to harassment contrary to section 8 of the Acts in terms of section 14A of the Employment Equality Acts.

I find that the complainant was discriminatorily dismissed by the respondent in terms of section 8 of the Acts.

In all of the circumstances of the within complaint and taking into consideration all of the relevant factors including the length of time the complainant was employed with the respondent and the complainant’s rate of pay and hours worked per week, I am of the view that an award in the amount of €10,000 is appropriate. I therefore in accordance with my powers under section 82 of the Employment Equality Acts order the respondent (i) to pay the complainant the sum of €10,000 by way of compensation for the distress and effects of the discrimination on the complainant.

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

Pursuant to section 82 (1) (c) I order the respondent to review its Policy and ensure it takes into account the provisions of S.I. No. 208 of 2012 Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012.

Employment Equality Acts, discrimination, gender, harassment, discriminatory dismissal, minimum notice