SECTION 26(1), EMPLOYMENT EQUALITY ACT, 1977
A WORKER (CLAIMANT)
(REPRESENTED BY MICHAEL MCNAMEE B.L.
& INSTRUCTED BY MCGONAGLE, SOLICITORS)
- AND -
A RETAILER (RESPONDENT)
(REPRESENTED BY A & L GOODBODY, SOLICITORS
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Alleged unfair dismissal under Section 26(1) and Section 27 of the Employment Equality Act 1977.
2. The respondent is engaged in the retail trade. The claimant was employed by the respondent as a sales assistant between March 1999 and 13th October 1999, when she was dismissed. The reason given for the dismissal was that the claimant had engaged in "theft by deception", in the course of her employment.
- On Friday 8th October 1999, the claimant had made a formal complaint to the respondent alleging that the manager of the store at which she was employed had sexually harassed her.
- The claimant denied that she had acted dishonestly and claimed that the sole or main reason for her dismissal was the complaint of sexual harassment which she had made against the manager.
- The respondent contends that the claimant had admitted to acting dishonestly in selling items of clothing to a work colleague at a reduced price without authorisation, thus defrauding the company of £60. They say that this was the sole grounds for the dismissal and deny any connection between the dismissal and the claimant's complaint of sexual harassment.
- The case came before the Court by way of a complaint pursuant to Section 26 / 27 of the Employment Equality Act 1977 ("the Act").
Summary of the Claimant's Evidence.
The claimant told the Court that she was originally employed as a part-time sales assistant and was later appointed in a full-time capacity. This was her first employment, except for a period spent on a Community Employment Scheme.
On a number of occasions during the course of her employment the male manager of the store had subjected her to remarks and suggestions of a sexual nature. She said that on 7th October 1999, while processing deliveries at the rear of the store, the manager approached her and touched her right breast. Later, while trying to avoid further advances by the manager, she tripped and fell over a crate.
On the following day the claimant made a complaint concerning the conduct of the manager to the female assistant manager. The assistant manager allowed the claimant to go home and remain on full pay until the complaint could be investigated.
On the morning of Wednesday 13th October 1999 the claimant met with Mr M who is the Regional Loss Control Manager for the respondent. Mr M interviewed her in relation to her complaint and wrote out a statement which the claimant signed. This interview was conducted in a caf� adjacent to her place of employment. The claimant had no complaint regarding the way in which the interview was conducted or as to the accuracy of the statement recorded by Mr M.
Following this interview the claimant was instructed to return to work, which she did. Mr M told her that he would come back to her in relation to her complaint. Some hours later the claimant was called to a meeting with Mr M in the store canteen. While the claimant was not told the purpose of this second meeting, she anticipated that it was in relation to her complaint.
At the start of the meeting the claimant noted a marked difference in Mr M’s attitude towards her. She said that Mr M told her something to the effect that he was a policeman or had been a policeman and would know if she told lies. Mr M then asked the claimant if she had sold goods to other staff members for less than the marked price.
The claimant told Mr M that on two occasions she had sold items of clothing at a reduced rate to a named colleague. However, she went on to explain that this occurred when she deducted a 20% staff discount from the price recorded by the scanner attached to the till. The claimant also told Mr M that this was standard practice in the store and was authorised by the store manager. She further said that the store manager regularly left a special key necessary to activate the discount button inserted in the till so as to allow sales assistants to apply the staff discount without reference to him.
The claimant told the Court that Mr M was not interested in her explanation and told her that what she had done amounted to theft. Mr M. wrote out a statement, which he gave to the claimant and dictated a formula of words confirming the accuracy of its contents, which he told her to write at the bottom of the statement. The claimant said that she was distraught by the circumstances in which she found herself and felt intimidated by Mr M.
Whilst she accepts that Mr M may have read the statement over to her she did not understand what he was saying nor did she comprehend its import. She did not read the statement but wrote out the words dictated by Mr M and signed it on his instructions. Further, the claimant said that having signed the statement Mr M told her that she was being dismissed and gave her a document to that effect. At that stage the claimant was asked if she wished to have a witness present. She declined the offer.
The claimant told the Court that she loved her job and had never acted dishonestly. She said that the statement was a distortion of what she had said to Mr M and that she had been intimidated into signing the statement.
The claimant put the time of the dismissal in the late evening and thought it was around 7.30 to 8pm. Since the dismissal she had heard nothing from the respondent in relation to her complaint of sexual harassment.
The claimant consulted her Solicitor some days after her dismissal as a result of which the present proceedings were commenced.
Summary of Evidence on behalf of the Respondent.
In its written submission the respondent told the Court that in the week commencing 4th October 1999 it received a report from the security company at the Shopping Centre in which its store is located, that staff in the store had engaged in theft and false accounting. Mr M, the Regional Loss Control Manager of the respondent was assigned to investigate the allegations. Mr M then arranged to travel to Dublin to conduct his investigation. On 8th October the claimant submitted her complaint of sexual harassment against the store manager. Mr M was asked to investigate this complaint also.
The respondent further stated that having interviewed the claimant in relation to her complaint, Mr M interviewed two members of the respondent's staff in connection with the reported theft. Both persons implicated the claimant. Mr M then proceeded to interview the claimant who admitted having reduced the price of goods for the benefit of another staff member without authority. The submission went on to say that having received this admission Mr M issued the claimant with a written notification of dismissal with immediate effect.
The respondent in its written submission further stated that Mr M then interviewed the store manager in relation to the complainant's complaint and that he denied the allegation. The respondent went on to say that Mr M nonetheless suspended the store manager pending the outcome of an investigation. The store manager resigned from the employment of the respondent on 22nd October 1999 for unstated reasons, in consequence of which, the respondent said, they were unable to conduct any such investigation.
The respondent submitted that its sole reason for dismissing the claimant was because of her theft and deceit, which amounted to gross misconduct.
Three witnesses gave evidence on behalf of the respondent which can be summarised as follows:
The Human Resources Manager, Ms D, who is based at the company's head office, gave evidence as to the policy pursued by the respondent in relation to allegations of sexual harassment and dishonesty against staff. The witness said that the standard contract of employment issued to all company staff lists theft and sexual harassment amongst the forms of gross misconduct, which will result in summary dismissal.
In relation to staff discount on goods purchased by staff, the witness said that such discounts are allowed but only on the specific authorisation of the store manager. The practice is that a special key is retained by the manager which must be used to operate the discount button on the till and without which a staff discount cannot be registered. The witness said that all staff are trained in the procedures to be followed in that regard.
Further, the witness said that the company has an Equal Opportunities Policy, which includes a policy against sexual harassment. Where complaints of sexual harassment are made against staff, it is company policy to conduct a thorough investigation and where the complaint is made out to take appropriate disciplinary action.
In relation to the instant case the witness confirmed that the claimant's complaint of sexual harassment had been conveyed to her department but that she had not personally dealt with the matter. She understood that Mr M had been assigned to investigate complaints of theft at the Dublin store and had been asked to investigate the claimant's complaint while in Dublin.
Ms D told the Court that the authority to dismiss a member of staff is reserved to a member of the Human Resources Department and Mr M would not have had that authority. His function would be to conduct an investigation into alleged misconduct and report back to the witness or to one of her colleagues in the Human Resources Department. In this case it was one of her colleagues who authorised the dismissal of the claimant. The witness also understood that the manager against whom the claimant had complained had also been dismissed.
Mr E, who is Head of Loss Control with the respondent, also gave evidence. He said that the company has a serious problem of loss due to theft. He estimated that 75% of this loss is attributable to theft by staff. This witness also outlined to the Court the procedures normally followed in the investigation of theft.
Finally, Mr M, the Regional Loss Control Manager gave evidence.
This witness told the Court that a report had been received at the head office of the company concerning incidents of theft at the Dublin store. This report was received from a security firm engaged at the Shopping Centre in which the store is located.
In response to questions from the Court Mr M said that this security firm came by this information from one of its employee's who had previously been employed by the respondent and who himself had stolen from the store while employed there.
Mr M said that on receiving this report he contacted the manager of the store. The witness told the Court that the manager confirmed that he knew that two named members of staff, neither of whom was the claimant, were defrauding the store. Mr M then decided to travel to Dublin to investigate the situation. Later the witness was informed that the claimant had made a complaint of sexual harassment against the store manage. He agreed to investigate the report while in Dublin.
Mr M told of interviewing the claimant in a caf� in relation to her complaint of sexual harassment. He said that he wrote down a statement, a copy of which was furnished to the Court. The witness said that he later interviewed the manager who denied the allegation. Mr M could not recall whether or not he took a statement from the manager but believed that he probably did take a statement. He said that he did not take any further action in this matter beyond making a report to the Human Resources Department.
Later Mr M interviewed separately the two members of staff who were alleged to have engaged in theft from the store. Both admitted their guilt. After each interview Mr M telephoned a named member of the Human Resource Department to report on the outcome of his investigation and was authorised to issue the staff member with notification of dismissal. Both members of staff implicated the claimant in the dishonest practices to which they admitted.
Mr M then interviewed the claimant. He said that he asked her if she had dishonestly reduced the price of goods for the benefit of other staff members. The claimant admitted that she had. He said that he wrote down what the claimant had told him in the form of a statement, a copy of which was furnished to the Court. The claimant then confirmed in writing the accuracy of what was written and signed the statement.
Mr M said that he then left the room and telephoned the Human Resource Department and reported on what had occurred. He was told to dismiss the claimant. The witness said that he returned to room and told the claimant that he was now conducting a disciplinary interview and that she could have a witness present if she wished. The claimant declined this offer. He then filled out a formal notice of dismissal, which he gave to the claimant.
Mr M denied that he adopted an aggressive attitude towards the claimant at this interview. He also denied telling the claimant that he was a policeman or saying anything to that effect. The witness said that his attitude was no different to that at the earlier interview with the claimant in relation to her complaint of sexual harassment. He denied that the claimant was put under any pressure to sign the statement and said that she had done so voluntarily.
In response to questions from the Court Mr M accepted that the claimant was given no prior indication as to the purpose of the meeting to which she was summoned. He also accepted that she was not told the source of the allegations against her. Mr M also accepted that the claimant was not afforded an opportunity to obtain representation at this investigative interview.
Mr M further denied that the claimant had told him that the store manager had authorised her to allow staff discounts to other members of staff. He accepted that if he had been told this he would have been obliged to investigate the matter further. Mr M also accepted that he had not checked the records of transactions on the till for the period in which the alleged undercharging had occurred.
Whilst the statement put in evidence recites that a formal caution had been given to the claimant before it was taken, Mr M accepted that no such caution had been given until after the statement had been signed.
Mr M put the time of the interview with the claimant at late in the afternoon. He said that the process was completed before 5.30 pm because he would have been unable to make contact with the Human Resources Department after that time.
Findings of Fact.
The Court has carefully evaluated all of the evidence adduced, together with the written submissions of the parties. The Court has also examined the various statements purportedly made by the claimant which were put in evidence.
What has emerged from the evidence is that on or about 4th October 1999, the store manager told Mr M that two named members of his staff had engaged in fraudulent activity. There was no suggestion that the claimant was in any way involved. It was only after she made her complaint of sexual harassment against the store manager that the claimant's honesty was called into question. It was Mr M’s evidence to the Court that this was because the other two staff members named by the store manager had implicated her.
What also emerged is that on the 8th October 1999, the claimant made a complaint to the assistant manager alleging that the manager had committed what amounted to a sexual assault on her. The assistant manager, having been so authorised by her superiors at the head office, responded sympathetically to the claimant and allowed her to remain off work on full pay until her complaint could be investigated.
However, the responsibility for conducting the investigation was assigned to a male loss control manager whose primary purpose in coming to Dublin was to investigate and detect theft. Mr M had no clear recollection of what if any action he had taken in relation to his investigation of the claimant's complaint apart from taking a statement from the claimant and possibly taking a statement from the manager against whom the complaint was made.
While the respondent in its submission to the Court stated that Mr M had suspended the manager pending a further investigation of the complaint, in his evidence to the Court Mr M had no recollection of having done so and believed that he had merely reported back to his head office. In any event the claimant never received any response to her complaint from the respondent and its veracity was never acknowledged. The Solicitor for the respondent did acknowledge in the course of the hearing that the complaint was made in good faith. However, in its submission to the Court the respondent stated that it did not accept that the claimant had been subjected to the sexual harassment which she alleged and suggested that as she had conspired to engage in theft she should not be believed. Significantly, the respondent did not call the person against whom the complaints were made to rebut the claimant's evidence.
For reasons which follow, the Court does not accept that the claimant had conspired to engage in theft as alleged or that her testimony should be rejected. It has no hesitation in finding that the claimant was subjected to the sexual harassment which she described in her evidence and which formed the subject matter of the complaint which she made to the respondent.
There is an irreconcilable conflict between the claimant's version of the interview which cumulated in her dismissal and that given by Mr M. Having considered the evidence given by these witnesses as a whole and taking account of their demeanour in giving evidence, the Court prefers the evidence of the claimant over that of Mr M.
The Court is satisfied that the investigation to which the claimant was subjected in the afternoon or evening of the 13th October, 1999, in relation to the alleged theft, was devoid of any form of procedural fairness and offended against the principles of natural justice to which the claimant was entitled. She was given no advance notice of the allegations against her or of the purpose of the meeting to which she was summoned. The identity of her accuser was not disclosed. She was not allowed any representation.
The Court accepts as a fact that the claimant readily acknowledged that she had reduced the price of goods which she sold to a colleague and offered a perfectly innocent explanation for so doing. The Court also finds as a fact that Mr M failed to record or take cognisance of this explanation in the document which he created and so distorted the statement which the claimant made. Further, if as claimed in his evidence, Mr M did report on his investigation to the Human Resources Department, he failed to inform the person who authorised the claimant's dismissal of the explanation which she had given.
The claimant contends that she was intimidated by Mr M and by the situation in which he placed her into signing the alleged inculpatory statement and that she did not understand the content or implications of that statement. Given the claimant's age, lack of experience, her demeanour, the manner in which the interview proceeded and the fact that she may well have been affected by the trauma of the sexual assault which she suffered, this is entirely plausible.
The Court, therefore, finds that the claimant did not freely or voluntarily admit to defrauding her employer. Since this purported admission is the only evidence relied upon by the respondent to support its accusation of dishonesty against the claimant, it follows that the Court must not only reject that accusation but must also find that no substantial basis existed on which the respondent could have reached such a conclusion.
The Court further notes that the evidence adduced on behalf of the respondent disclosed a marked contrast in its response to the claimant as compared to the store manager in relation to the alleged dishonesty.
The respondent claimed that in addition to her own involvement in theft, the claimant was aware that at least one other staff member was involved in unauthorised price reductions. They submitted to the Court that the claimant's failure convey this information to the respondent constituted “a failure to act in good faith” and suggested that this in itself constituted misconduct.
On Mr M’s evidence, the first report of theft from the store came from an outside security firm and not from the responsible manager. Yet, when contacted by Mr M in relation to this report, the store manager was not only in a position to confirm the accuracy of this report but was also able to
identify two staff members who were allegedly involved.
The store manager had not reported this to his superiors nor does it appear that he took any action against those whom he believed to be involved. Remarkably, no action of any kind appears to have been taken against the manager in relation to his failure to take action in that regard.
The Onus of Proof
Both parties accept that the settled law in cases involving an infringement of the principle of equal treatment of men and women in employment is that where a claimant establishes a prima facia case of discrimination, the onus is on the respondent to establish that no such infringement occurred. This principle is now incorporated in Article 4 of Council Directive 97/80EC of 15th December 1997 on the Burden of Proof in Cases of Discrimination Based on Sex.
The latest date for implementation of this Directive was 1st January 2001. Whist the Directive is not yet transposed into Irish law, the case law of the ECJ, which is one of the bases from which the Directive is derived, already establishes that principle. Moreover, since the date for implementation of the Directive has now passed, the Act must be interpreted by the National Courts of the Member States so as to achieve the result envisaged by the Directive. This interpretative obligation on National Courts, which applies whether or not the Directive post dates the National Legislation, is derived from the decision of the ECJ in Marleasing SA v La Comercial Internacional De Alimentacion SA  ECR 4135 and more recently in Dori v Recreb  ECR 1 763
In relation to the present case the facts as found by the Court establish a prima facie case in the claimant's favour which shifts the burden of proof to the respondent. The Court is, therefore, satisfied that the respondent carries the evidential burden of proving that the claimant's dismissal was not solely or mainly motivated by her complaint of sexual harassment.
The Court accepts that the claimant was sexually harassed in the manner alleged and that her complaint to the respondent in that regard was made in good faith.
The respondent's sole defence to the claim of penalisation herein is that the claimant's dismissal resulted solely from having engaged in theft. In order to make out that defence the respondent must satisfy the Court, on the balance of probabilities, that sufficient grounds, unconnected to her complaint of sexual harassment, existed to justify the dismissal. For the reasons set out earlier in this Determination the Court does not accept that the respondent has discharged this onus.
For all of the reasons set out above the Court finds that the claimant's dismissal was solely or mainly attributable to her complaint of sexual harassment and that the claimant was penalised in contravention of Section 2 (d)(ii) of the Act. Accordingly, the Court is satisfied that the complaint herein is well founded.
Having held that the claimant's complaint is well founded the Court must go on to consider the form of redress to which the claimant is entitled. The Court determines that the appropriate form of redress is an award of compensation pursuant to Section 26(1)(d)(iii) of the Act. In measuring the quantum of compensation the Court must take into account all the circumstances of the case.
The events complained of must have a continuing profound effect on the claimant's material and emotional well-being. Her character and good name has been taken from her and her future employment prospects, particularly in the distributive trade, must have been severely reduced if not destroyed.
The Court must make an award which goes some way towards ameliorating the harm which was caused to the claimant. The only compensation which would be reasonable in the circumstance of this case is the maximum allowable within the Court's jurisdiction, namely an amount equal to two years' remuneration.
The claimant's rate of pay was £200.85 per week. The award of compensation which the Court considers reasonable in the circumstances is one of £20,888.40.
An Order will be made directing the respondent herein to pay to the claimant compensation in that amount.
Signed on behalf of the Labour Court
9th March, 2001______________________
Enquiries concerning this Order should be addressed to Larry Wisely, Court Secretary.