SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
A. COMPANY (RESPONDENT)
- AND -
A. WORKER (COMPLAINANT)
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998.
2. The claimant was employed by the respondent from the 19th September, 2000, assembling communication cords. It is alleged that the claimant was unfairly dismissed on the 5th February, 2001. The Company rejects the claim.
The complainant claims that she was discriminated against on the grounds of her Gender by being sexually harassed in breach of Section 23 of the Act and that her refusal to grant sexual favours to her employers contributed to her dismissal. The complainant further claims that she was discriminated against on the grounds of her nationality in breach of Section 6 (2) (h) and Section 8 (1) (a) and (b) of the Act and that she was dismissed in circumstances amounting to discrimination, in breach of Section 77(2).
The claimant referred her case to the Court for investigation under Section 77 of the Employment Equality Act, 1998. Labour Court hearings took place in Oranmore, Co. Galway on the 18th January 2002, and on the 21st and 22nd February, 2002.
The worker contended that she came to this country on the understanding that her employment would be in a nursing home and that she had paid an agency one thousand dollars in the process.
On her arrival in Ireland she was told the nursing home position was not available and she was left with no alternative but to take the employment offered to her, that of assembly worker in a factory owned by the same employer. She states that she took the job on the understanding that it was temporary, and that she would be eventually placed in the job for which she was recruited. She maintains that she carried out the work successfully and there was no reason for her employer to challenge her work.
She claims that during her employment the owner and the factory manager made sexual advances to her, and referred to her “illegal status” and the possibility of jail as a result. She says that the sexual harassment was unwanted, continuous and unreciprocated and that her employers spread unfounded rumours to the effect that she was pregnant. Furthermore there were untrue rumours that she and the manager were having an affair and he had made her pregnant, this caused her extreme distress.
She claims that her complaints to the manager in relation to work issues were not disputed but nothing was done to correct the position, and that he falsely accused her of theft of money and teabags.
These issues collectively undermined her confidence and she lost belief in her own ability. She says that the relationship with fellow workers deteriorated because the manager actually spoke to others about her and this caused her further stress and isolation.
The complainant claimed that the manager on the 5th February 2001 initially suspended her from her employment for harassing his mother, by phoning his home. She stated that he was agitated, refused to listen to her responses and when she sought to have the suspension terms set out in writing, he got further upset. He subsequently ordered her off the premises and told her she was sacked.
The management structure of the Company is simple and direct. The owner takes overall responsibility for the Company and its employees, but because of his continuous need to travel on Company business, the day-to-day responsibilities of running the factory are left to the manager.
The owner of the business is adamant that all the allegations are untrue and unfair to the good names and reputation of himself and his manager.
The employer stated that the recruitment of foreign nationals had been very successful and introduced two non-national workers to give evidence confirming the validity of that statement. It was denied that any member of staff could be faulted in the treatment of the claimant either on gender or race grounds. The allegation of sexual harassment was completely untrue.
The employer accepts that the nursing home job was not available when the claimant arrived in Ireland. The employer says that two weeks prior to her arrival, notice was sent to the Overseas Agency by the Recruitment Agency in Ireland indicating that the job was no longer available. The employer says that this was simply because in the 4-month delay in recruiting staff from abroad the positions were filled. Management says that the employee accepted the alternative job and on arrival, was shown the work area and spoke to a non- national already at work in the factory. She at no stage refused the job or set conditions for her acceptance of the post.
The employer says that the complainant from the outset was difficult. This was initially put down to a cultural difference but the Company was prepared to work to improve the situation.
Management stated that whilst her work performance was not satisfactory, it was not a major issue and they were confident that in the long run this would resolve itself. They did have a concern about her refusal to stay at her workbench and that she spent too much time talking.
The manager claims that the complainant gave him letters, which, when he read them, he believed to be sexual to the point of being pornographic. He was already concerned about his reputation because of the persistent rumours about a sexual relationship between the complainant and himself and that she was pregnant by him. Management believed that the rumours emanated from the complainant, and that the complainant was intending to blackmail the manager over the alleged pregnancy.
However, major concerns arose when two Gardai arrived at the factory unannounced in December 2000.
On the 12th December 2000 two Gardai, stating that they were on an official investigation, called to the factory claiming they were investigating a mafia prostitution ring operating in the area involving women of the same nationality as the complainant. The manager of the factory gave evidence that one Garda walked down the factory floor, and when he saw the complainant said "that's the one". He further implied to the manager that the complainant had been filmed by a security camera in a hotel offering prostitution services to guests. The Company took a very serious view of this visit and immediately contacted the employment agency. However, no direct action was taken because the Gardai had requested that no action be taken in case it hampered their investigation. The worker was not made aware of these allegations.
Around Christmas time management say that the claimant’s behaviour and actions became more irritable and now extended to making phone calls to the factory manager’s house. They also believed that the claimant was purposely intimidating the factory manager’s mother by standing outside the house, taking photographs of it and knocking on the door.
Finally the manager was placed in a situation where he says he had no alternative but to confront the claimant with regard to her behaviour, but he also took the opportunity to include her poor performance and lack of attention to the job.
On the 5th February, 2001 he sought to interview her in the presence of a fellow national, but the claimant refused to attend with this third party present. He accepted the one to one situation but only if the third party was outside the door and could hear the substance of the interview. He says that it was difficult to conduct the interview in an orderly fashion because the claimant refused to listen, failed to accept responsibility, and challenged everything he said. Initially he intended the interview to establish a restoration of normality with particular confirmation to the effect that telephone calls to his home would cease.
Because of her attitude he came to the conclusion that he would have to take the position to a higher point. He told her she was suspended for one week. He accepts that she sought that in written form, but that he says that even the production of the written terms caused further opportunity for her to be confrontational and it reached a point where he ordered her off the premises. He is adamant that he did not dismiss her and says that such authority resides with him alone. He refutes her allegations that on her return a week later she was told she was dismissed.
The Burden of Proof in Gender Cases:
The burden of proof in gender cases is laid down in paragraph 3(1) of the European Communities (Burden Of Proof In Gender Discrimination Cases) Regulations, 2001 which states that, where, in any proceedings facts are established by or on behalf of the person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.
This Court considered the evidential burden, which a party must bear in these circumstances in the case of Southern Health Board and Mitchell ( DEE011). The first requirement is that the claimant must establish facts from which it may be presumed that the alleged discrimination has taken place. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principal of equal treatment.
Findings on claim of discrimination on grounds of Gender:
In this case, the worker has made a series of allegations of sexual harassment against her employers. Her employers strenuously deny all of these allegations. This court recognises the special burden which attaches to claims of this type. However, the evidence adduced by the complainant to support the allegations made, is not, in this case sufficient to raise a presumption of unlawful discrimination and therefore the claim of discrimination on the gender grounds must fail.
The Burden of Proof in Cases of Racial Discrimination:
The burden of proof in cases of racial discrimination is of a different type. Counsel Directive 2000/43/EEC has not yet been implemented in this jurisdiction and no guidelines have been given by the European Council or the Court of Justice as to the burden of proof necessary in cases of Racial discrimination or discrimination on the grounds of Nationality. This Court accepts that until such time as this question is settled the burden of proof that a claimant must bear in this type of case is that they must prove their case on the balance of probabilities.
It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit to such discrimination, even to themselves. In some cases the discrimination will not be ill intentioned but merely based on an assumption that he or she would not have fitted in.
The outcome of the case will therefore usually depend on what inference it is proper to draw from the primary facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw from evasive or equivocal responses to questions.
Findings on the claim of discrimination on the grounds of Race:
The claimant has shown that she came to Ireland to take up a position in a nursing home. She was instead offered a position as an assembly line worker. This left her believing that she was not working legally which caused her great concern. She was given no written Contract of Employment.
It is clear to the Court that the type of work that the claimant was undertaking was likely to be unsuitable to her. However, it was accepted by the manager of the factory that while her work rate was not up to the full requirement this did not present a major problem and he was prepared to live with the situation. It is clear that tensions arose between the manager and the worker on a number of issues and between the complainant and her fellow nationals.
The complainant was particularly worried and aggrieved that her work permit stated that she was in the country working in a nursing home, while in fact she was actually working in a factory. She believed this would mitigate against her as she was illegally working in the country.
There is no evidence that the employer did anything to reassure her or to ease her worries in relation to the possibility of her work permit being seen to be invalid. Nor is there any indication that the employer ever intended to give her employment in his nursing home, as originally planned. Indeed the employer indicated to the Court that he would not have employed her in the nursing home, based on what he called her performance in the factory, despite the fact that he never conveyed this to her at any time.
When she attempted to talk to her employer about the problems, no response was forthcoming. She states that finally she telephoned her manager on several occasions to discuss both the rumours surrounding her pregnancy and her work status. The manager claimed that the calls to his home resulted in harassment of his mother. The complaint stated that the number that she rang was given to her by the factory manager on her arrival.
The Court is of the view that this harassment was not as intense as alleged, but was over a short period of time and was due to the anxiety of the complainant in relation to her work position and work permit arrangements.
The owner of the Company indicated to the Court that he had no difficulty with the claimant until a visit by the Gardai to his factory, when it was claimed by the manager that the Gardai had identified the worker as someone being under investigation regarding involvement in a mafia vice ring in the area.
The owner indicated to the Court that he took a very serious view of this visit, as he was anxious about the good name of his family and his Company. He acted immediately by contacting the employment agency in Ireland.
However, the owner subsequently changed his position in Court on this issue, when it was highlighted that there was no authorised Garda investigation. He then stated he had concerns about her work performance.
A representative of the employment agency in evidence to the Court indicated that it took the Company contact, following the Garda visit on the 13th December very seriously and immediately came to meet the employer about the situation. Subsequently they took every action possible to remove the worker from the Company, even to the extent of indicating that she should return to Russia. In its evidence to the Court, the agency confirmed that it was not aware of any problems before the 13th of December.
The Employment Agency in its documentation stated that it was extremely surprised to subsequently find out there was no formal Garda investigation, despite the fact that they had put in motion a number of actions to remove the employee from the Company. The factory manager only revealed to the employment agency on the 5th of February “that the Gardai had in fact no investigation or suspicion at all as earlier reported so dramatically”.
It is also worth noting that the Company in its original submission to the Court, while referring to the visit by the Gardai allegedly investigating prostitution, did not indicate to the Court that it had been formally told by other Gardai subsequently that the" investigation was unauthorised" This was only made known to the Court after the first hearing, when the relevant Superintendent indicated that to be the case.
It is also worth noting that the Company in its written submission failed to make any mention of the fact that the complainant had actually been recruited to work in a nursing home.
While management during the hearing made continuous reference to the complainant’s mental state, they accepted that she showed no evidence of any such problems while employed.
The Court is not surprised that her health may have suffered and that she was stressed given the situation she found herself in, and the way she felt she had been treated. It is interesting to note that for the last year she has successfully held a post in a nursing home and has brought her daughter to Ireland.
The Court is seriously concerned that in a letter circulated to a wide range of agencies including Embassies, Gardai and Health Services in March 2001, two months after the dismissal, the employment agency raised the issue of the complainant being investigated for prostitution even though the Garda authorities had made it clear that she had never been under investigation.
Again the Court is concerned that the security consultant employed by the employment agency stated that at his meeting with the manager on the 22nd of February, 2001 he was told that the complainant “had come under the notice of Gardai regarding a moral issues”. This was despite the fact that it was known by the Company for some time that this was untrue.
The Court has taken all of the evidence adduced into account. It is satisfied on the evidence that the complainant was treated differently by her employer than an Irish National would have been treated in similar circumstances. The Court is satisfied, on the balance of probabilities, that the correct inference to be drawn from this difference in treatment is that it arose from the complainant’s nationality.
The Court is satisfied that the Company in its actions terminated the employment of the complainant. The employment agency in its letter on the 29th of March, 2001 states that the manager told them on the 5th of February, 2001 “he had suspended her from work and that he was terminating her contract”.
The Court is also satisfied on the balance of probabilities the treatment of the worker by the manager, and the almost complete non-implementation of relevant legislation, was due to the fact that it regarded the worker as someone of a different nationality, who would not have the capability to stand on their legal rights and that by its actions up to and including its constructive dismissal of the worker, it discriminated against her on the grounds of her nationality within the meaning of Section 6 (2) (h) and Section 8(1) (a) and (b) of the Act.
The Court determines that the worker has been dismissed in circumstances amounting to discrimination on the grounds of her nationality and accordingly awards her €15,000.00.
The Court in considering this complex case is concerned about the duty of care that is associated with recruitment of foreign nationals as identified in this instance.
The Court’s concern relates to the very difficult position the complainant was forced to act and react to when she discovered the post in the nursing home was not available. In a “normal” recruitment situation the indigenous prospective employee would have far greater confidence about the situation. It would be possible to seek support in making their decision from advisory services, family, understanding of the structure and the interactions of the labour market, financial support of the state, to name but a few.
In this situation these options did not exist. It was either return to her country of origin (bearing in mind that she had sought to leave her country and committed substantial resources to bring it into effect) or take up the job offer.
It was not a situation which would relate to an Irish Employee.
The Court’s further concern relates to the position as stated by the recruitment agency that once it has passed the prospective employees over to the employer, it has no further responsibility in its duty of care. Any support given by their agents is voluntary and not out of duty.
The Court strongly recommends the companies employing non-nationals recognise the difficulties that may arise, provide proper induction courses and that they make resources available to enable them to deal with any social and cultural differences which arise in these situations.
During the hearings the complainant also raised a number of serious allegations in relation to the legality of the operation of the work permit system in this case, and the legality of the Garda involvement in her hospitalisation, after her employment had been terminated.
She also complained about the damage done to her reputation by the distribution of a document in March 2001 from the employment agency to a wide range of organisations.
While the Court noted these issues, it is of the view that it would be more appropriate that these matters be raised with the relevant authorities.
However, the Court finds the background to the Garda visit to the factory on the 12th December to be extremely disturbing, and warranting investigation particularly as the visit had such serious consequences subsequently for the complainant.
Signed on behalf of the Labour Court
13th May, 2002______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.