FULL RECOMMENDATION
SECTION 26(1), EMPLOYMENT EQUALITY ACT, 1977 PARTIES : HONEYCLOVER (FRESHFORD) LIMITED (REPRESENTED BY POE, KIELY, HOGAN, SOLICITORS) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Owens Employer Member: Mr Keogh Worker Member: Mr Rorke |
1. Alleged unfair dismissal under Section 26(1) and Section 27 of the Employment Equality Act, 1977.
BACKGROUND:
2. The case concerns a worker who was employed by the Company on the 30th of October, 1996, as a general operative in the packing area and boning hall of the plant. She was dismissed on the 23rd of April, 1997 shortly before the end of her 6-month probationary period . The Union claims that the worker was dismissed due to the fact that she made a complaint to her employer of sexual harassment. By making her complaint, which she did only 2 days before her dismissal, the Union states that she was exercising her rights under the 1977 Employment Equality Act for equal treatment and protection against a hostile working environment. The Company rejects the claim of unfair dismissal maintaining that the worker's dismissal was for various reasons relating to her performance and conduct. The matter was the subject of a Labour Court investigation, in Kilkenny, on the 10th of December, 1997.
UNION'S ARGUMENTS:
3. 1. The worker's dismissal arose as a result of her opposing an act of discrimination under the entitlements provided for her in the Employment Equality Act (Section 2 (d) (ii)). The discrimination is a violation of Section 2(a) and 3(1) of the same Act. Consequently, the dismissal comes within the ambit of Section 26(1) and Section 27 of the Act and also is in breach of Section 3(4) in that she was subjected to discrimination in her working conditions and in the circumstances in which she was dismissed.
Section 3(4) of the Act provides that an employer/person will be taken to discriminate against an employee if they do not provide the same terms of employment and working conditions to that employee as to another person. The sexual harassment complained of by the worker (details supplied) constituted discrimination within the meaning of the sub-section and her raising the issue of sexual harassment led to her dismissal.
2. The worker is seeking the maximum compensation under the Act as she feels it would be impossible for her to return to work in the Company given what she already endured and the consequent stress suffered. Employment opportunities are not in abundance in the area, and the search for further employment is hindered by the dismissal and the absence of a suitable reference. To date, although she has sought alternative employment, she has met with only limited success.
3. The experience the worker has had to endure of having her employment terminated as a result of pursuing a legitimate grievance under the Act led to tremendous emotional stress, depression and anxiety for her. This was the major contributory factor leading to her requiring special medical attention (details and supportive evidence supplied to the Court).
4. The Company's contention that the worker's dismissal was as a result of her unsuitability during her probationary period is unfounded and without substantiation. She came to work in the Company determined to meet the required operational and employee standards and did so in an exemplary fashion. Instead, she encountered sexual harassment and, ultimately, dismissal for "speaking out" for her rights.
5. The Company's claims regarding the worker's performance and conduct are rejected. Her absence through sickness amounts to 3.8% which is extremely low. When absent through illness, she complied with the Company's requirements in relation to advising of her absence.
6. The fact that the worker had been enrolled on a 6-month FAS course, commencing at the end of March, 1997, indicated that the Company envisaged retaining her beyond her probationary period.
COMPANY'S ARGUMENTS:
4. 1. The worker was dismissed while she was still in her probationary period because her conduct had fallen below acceptable standards and, accordingly, she was considered not to be suitable for future employment with the Company.
2. The worker failed to comply with the Terms and Conditions of Employment in respect of her absence from work, by not advising Management within 3 hours of normal starting time that she was not available for work. She was given a formal warning regarding this matter.
3. The worker's supervisor issued the worker with numerous warnings regarding her conduct. He had ongoing problems with her performance and she undermined his authority and encouraged bad conduct amongst other employees. Arising from this, Management had a meeting to discuss a resolution to the matter. It was decided that her conduct was not acceptable and she was dismissed.
4. The Company was obliged, by agreement, to enrol an employee on the FAS course and the fact that the worker was enrolled was not an endorsement of her.
ORDER:
The Court has considered the detailed submission made by the Union, and the response thereto made by the Company. In addition, the Court heard extensive verbal evidence from the Manager of the Company who had been involved in the decision to terminate the claimant's employment. The member of the management team who had actually informed the claimant that she had been dismissed did not attend the Court hearing.
It is not disputed that a dismissal took place. It is the reason for such action that is disputed.
The Union, on behalf of the claimant, alleged that she had been dismissed two days after she had reported to the Manager that she was being sexually harassed by another member of staff, who was male and in a superior position to her own. It was also alleged by the Union that, previous to the making of her complaint, the claimant had been given to understand that she would be retained in the employment after her probationary period had been completed. When she was ultimately dismissed, she was not given any reason for the dismissal. The Union alleged that the claimant had been dismissed for her opposition to the sexual harassment she had endured, and had thereby been penalised 'for having in good faith .... opposed by lawful means an act which is unlawful' (Section 2(d) (ii) of the Employment Equality Act 1977). the Company maintained that it was within its rights in dismissing the claimant, in that she was on probation, and that a Company/Union agreement allowed the Company to dismiss without a stated reason during the probationary period. The Company also claimed that the claimant had an excessive sick leave record, that she had not adhered to the sick-leave notification procedures, and that she was, in general, unsatisfactory in the employment.
Whether or not the claimant had actually suffered sexual harassment is not the issue in this case. The question is whether she was dismissed because she complained of harassment.
Having considered the evidence in this case, the Court finds that the evidence given by the Manager was not credible. Not only was his evidence contradictory but it was unsustained by any documentation. Furthermore, it was apparent to the Court that the Company had not kept to agreed procedures, and that it had behaved in an oppressive manner by denying the claimant access to Union representation at a critical time. The evidence of the claimant, on the other hand, was consistent and clear.
On the balance of probabilities, and given the circumstances of the dismissal, the Court is satisfied that the claimant was in fact dismissed because she had complained about sexual harassment. She had therefore been penalised for having opposed treatment which, if it had occurred as alleged, would have amounted to discrimination within the meaning of the Employment Equality Act 1977.
The Court accordingly, finds that the complaint was well-founded. It will make an order directed to the Company to pay to the claimant the sum of £6,000, which said sum the Court considers reasonable compensation for the loss of earnings suffered by the claimant and for the distress caused to her.
Signed on behalf of the Labour Court
Evelyn Owens
22nd of December, 1997______________________
M.K./S.G.Chairman
NOTE
Enquiries concerning this Order should be addressed to Michael Keegan, Court Secretary.