SECTION 26(1), EMPLOYMENT EQUALITY ACT, 1977
A DENTAL SURGERY
(REPRESENTED BY LARKIN, TYNAN AND COMPANY, SOLICITORS)
- AND -
(REPRESENTED BY MARGARET T.C. CASEY, SOLICITOR).
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Alleged unfair dismissal.
2. The dispute concerns a worker ("the claimant") who was employed by the dental surgery ("the respondent") in the capacity of full-time dental nurse, from July, 1996, having previously worked in the surgery on a "locum" basis. On the 15th of November, 1997, the worker referred a complaint to the Labour Court, under Section 26(1)/27 of the Employment Equality Act, 1977. The Court investigated the complaint at a Court hearing which commenced on the 25th of May, 1998 and which resumed on the 19th November, 1998, at which stage witness evidence was heard. Both parties made written submissions to the Court which were expanded upon orally during the course of the hearing.
This is a claim brought under Section 26 of the Employment Equality Act 1977 (“the Act”) that the claimant was dismissed from her employment for having made a complaint of sexual harassment to her employer, the respondent herein. While the claim had originally been referred to the Court under Sections 26 and 27 of the Act, the representative of the claimant indicated at the commencement of the hearing that it was intended to proceed under Section 26 only.
The Court was told that the complaint was made to a female partner in the respondent Dental Practice, (“Partner B”) against a male partner (“Partner A”), who is the husband of Partner B. It is the claimant's case that she made the complaint for the purpose of having the alleged harassment stopped.
The respondent denies that the claimant was dismissed and claims that she abandoned her employment. While it is accepted that the claimant told Partner B that Partner A had “made a pass” at her, the respondent denies that there was any basis in fact for this complaint.
Given the nature of the complaint, the parties agreed that the net issues for determination by the Court can be summarised as:-
1.Was the claimant dismissed from her employment?
2.If the claimant was dismissed, did the dismissal arise solely or mainly because of the complaint which she made to Partner B?
Having carefully reviewed the sworn evidence adduced by the parties and, having considered the written and oral submissions, the Court has reached the following conclusions:-
- In the late afternoon of Friday 11th April 1997, in the course of a heated discussion between the claimant and Partner B on an unrelated matter, the claimant told Partner B that Partner A had made a pass at her. Partner B went into the surgery area where Partner A was treating a patient and asked the patient to leave so as she could discuss the matter with Partner A in private.
- Partner B then called the claimant into the surgery area and asked her to repeat the allegation in the presence of Partner A. The claimant declined to repeat the allegation. Throughout the remainder of the afternoon Partner B continued to insist that the claimant elaborate her complaint. The claimant refused to do so. The claimant then left the practice at normal finishing time and was followed to her car by Partner B who again, unsuccessfully, asked her to explain the basis of her complaint.
The respondents told the Court that they believed from the claimant's conduct that she had resigned from her employment. The claimant told the Court that she considered herself as having been dismissed by Partner B. The Court does not consider that either inference could reasonably be drawn from the events disclosed.
- On the morning of Monday 14th April 1997, the claimant returned to the dental surgery at normal starting time. This, she said, was to obtain confirmation from Partner A as to her employment position. The claimant was met by Partner A who did not permit her to resume her employment. Partner A told the Court that he informed the claimant that she was suspended on full pay while the respondents obtained legal advice as to their position. This was denied by the claimant.
- The claimant subsequently made a claim for unemployment benefit to the Department of Social Welfare. On foot of that application the Department of Social Welfare enquired of the respondents as to the circumstances in which the claimant's employment terminated. The respondents replied to the effect that the claimant had been dismissed.
On the balance of probabilities the Court is satisfied that the claimant was dismissed by Partner A on the morning of the 14th April when she was prevented from resuming her employment. Had the claimant been mistaken in considering herself dismissed, the respondent had ample opportunity of correcting that mistaken belief when the enquiry was received from the Department of Social Welfare. Rather than so doing the respondent confirmed the claimant's understanding of what occurred.
- The Court has also concluded, on the evidence, that the claimant was dismissed because of the complaint which she made to Partner B on the afternoon of 11th April 1977. Having so concluded and, as the claim herein is grounded solely on the dismissal, it is unnecessary to establish if the complaint of sexual harassment made to Partner B was objectively well founded. Accordingly, the Court makes no finding on that point.
- However, in the circumstances of this case, the Court considers that the claimant's refusal to discuss the basis of her complaint with the respondents when asked to do so, was wholly unreasonable and a major contributory factor in the events which followed.
The Court upholds the claimant's complaint under Section 26(1) of the Act and considers that compensation is the appropriate form of redress. The Court also considers that the quantum of compensation awarded should be significantly reduced because of the claimant's conduct subsequent to having made the complaint.
The Court awards the claimant compensation in the amount of £500 and an order will be made against the respondent in that amount.
Signed on behalf of the Labour Court
7th December, 1998______________________
Enquiries concerning this Order should be addressed to Michael Keegan, Court Secretary.