A Female Complainant (Represented by Bowler Geraghty & Co., Solicitors) vs A Retail Grocery Store, Dublin (Represented by James McKeown Solicitors)
The dispute concerns a complaint that the respondent discriminated against the complainant on the grounds of gender contrary to the provisions of the Employment Equality Act, 1998 in the course of her employment at the respondent's retail grocery shop. As the complaint involves allegations of sexual harassment I have followed the established practice of this Tribunal not to name the parties in this decision.
2.1 The complainant was employed as a shop assistant at the respondent's retail grocery store in Dublin for a period of three weeks. She alleges that in the course of her employment she was subjected to discriminatory treatment, harassment and sexual harassment. The complainant had left the employment when the complaint was referred to the Director of the Equality Tribunal.
2.2 The complainant's legal representative referred a complaint to the Director on behalf of the complainant on 14th January, 2003. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, for investigation, hearing and decision on 21st March, 2003 and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a hearing of the complaint was held on 19th February, 2004.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant commenced employment at the respondent's store on 5th December, 2002 and alleges that she was subjected to verbal and sexual harassment by the coowner and manager at the shop. The following are some of the comments and treatment that she alleges she was subject to
- what size was her bra
- that her chest looked really big
- what type of sexual relationship she had with her boyfriend
- that she should be a Playboy stripper as she had the body for it
- staff have to have sex with the managers if they did not want to get sacked - her bottom was felt by the manager
- when she bent down comments were made about her underwear
- manager said 'I want to ride you'
- manager asked if she had any children and if not would she like to go to his office and try to make one.
The complainant states that she also witnessed the same behavior between male staff and other female members of staff and customers.
3.2 The complainant's legal representative argued that the treatment described above constituted less favorable treatment on the gender ground. It is alleged that the treatment constituted sexual harassment within the meaning of Section 23(3) and harassment within the meaning of Section 32(5) of the 1998 Act and the complainant is seeking compensation for the distress caused. The complainant's submission states that as a result of the ongoing harassment she was left with no option but to terminate her employment and she did not return to work after she phoned in sick on 19th December, 2002. The respondent has argued that a complaint of discriminatory dismissal is outside the jurisdiction of the Tribunal under the relevant provisions of the 1998 Act then in force and the complainant's legal representative has confirmed that it was not seeking to pursue a complaint of discriminatory dismissal through the Tribunal.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent denies that the complainant was subjected to verbal, physical or sexual harassment in the course of employment and denies that the comments listed at 3.1 above were made or that the alleged treatment ever took place. With regard to the complainant's contention that she did not return to work at the store because of the complained of acts, the respondent challenges the Director's jurisdiction to hear the complaint under the 1998 Act as any complaint of discriminatory dismissal was, at the time, a matter for the Labour Court.
4.2 The respondent describes its business as that of a high quality convenience retail outlet with a high turnover of staff and about 14 staff at any time, evenly split between male and female employees. The complainant was employed to work on the delicatessen from 12 to 6 pm Monday to Wednesday and 2 to 6 pm Thursday and Friday. While the respondent describes the complainant as cheerful and carefree, it states that it was clear that the complainant was not committed to her job. She would wander from her station to talk to other staff and customers. When she was challenged about this she said that her job was boring. The respondent describes the complainant as immature and prone to attention seeking and would come in with detailed accounts of her home and personal life.
4.3 The respondent states that it was clear that the complainant did not want to work at all and in the short time that she was in the employment she often arrived late. She was frequently permitted to leave work early on account of personal matters or social commitments. The respondent states that the complainant phoned in sick on 19th December, 2002 and said that she had a doctor's appointment and offered to come in early the next day. She was told that this would not be necessary and to report at her usual time of 2 pm. However the complainant did not attend for work the following day. When the respondent contacted the complainant she said that she was not in the humor to come to work but that she would return on 23rd December. The respondent decided at that point to terminate her employment and she was informed accordingly.
4.4 On the following Monday, the complainant's mother came to the shop and demanded the complainant's wages in an aggressive and intimidating manner. The respondent states that the complainant's mother left the premises stating that they had not heard the last from her.
4.5 The respondent states that the complainant never made any complaint of sexual harassment while working at the shop and the first they heard of it was when the complaint was referred to the Director and the respondent categorically denies the allegations. The respondent refers the Equality Officer to the findings of the Labour Court in A Company and A Worker1 and Teresa Mitchell v Southern Health Board2 in seeking to have the complaint dismissed.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the grounds of her gender in terms of Section 6(2) of the Employment Equality Act, 1998 contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. I note that the complainant's representative has confirmed that it was not seeking to pursue a complaint of discriminatory dismissal through the Tribunal.
5.2 Having regard to the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001), the onus in the first instance is for the complainant to present factual evidence from which it may be presumed that discrimination has taken place.
5.3 I note that the respondent, which operates under a franchise agreement to a major grocery distributor, included in its submission a copy of that organisation's sample handbook for franchised store owners dealing with such matters as Personnel Policy, Terms and Conditions of Employment, Customer Care, Trading Hours etc. The handbook includes a section on sexual harassment and disciplinary and grievance procedures however there was no evidence that the respondent had adopted the handbook in its own store or that the complainant or other members of staff were aware of its existence. The complainant has listed several alleged incidents of verbal or physical sexual harassment. In its submission, the respondent sought clarification from the complainant as regards the person or persons who made the comments or physical contact as well as the dates of the alleged incidents and the complainant subsequently named the co-owner of the store and the store manager. The complainant could not recall the dates of any of the alleged incidents but states that the physical contact took place during her last week at the store. The complainant states that there were no witnesses to any of the alleged comments or physical contact.
5.4 I note that no allegations of sexual or other harassment were raised prior to the referral of the complaint to the Director and I note also the respondent's comment that there are ten security cameras in operation in the store and that the video tapes, which are recycled on a monthly basis and which could have substantiated some of the allegations if true, were never requested by the complainant's side. I note the evidence of the female delicatessen supervisor who stated that the complainant's work was of a poor quality and that the complainant would have to be asked three times to make a sandwich. The supervisor stated that she was unaware of sexual harassment in the store and states that the complainant never mentioned any alleged sexual harassment. I note also that the female training manager at the store gave evidence at the hearing that she was unaware of any alleged sexual harassment or any improper behaviour by male staff towards female staff. There was therefore no corroboration of the allegations available from any witnesses at the store or through the security video tapes which had been recorded over.
5.5 The complainant's mother gave evidence at the hearing of her anger and distress when her daughter told her of the alleged sexual harassment at the store and states that she called the Gardai in relation to the matter who said that the complainant should not return to the store. The respondent objected to this new evidence being presented at the hearing as it was unaware of any Garda involvement and states that the store was never contacted by the Gardai in relation to the allegations. The complainant's legal representative indicated that the call to the Gardai did not lead to a formal complaint. The respondent stated that the complainant's employment was terminated in a telephone conversation with the store manager on 20th December, 2002 arising from her failure to report for duty and not by any decision on the part of the complainant.
5.6 A woman working with a centre for the unemployed with whose son the complainant was going out, was present at the hearing and gave evidence that she became involved when she heard of the allegations and called to the store the following week in order to collect wages due to the complainant but was refused because the complainant's uniform had not been returned. The complainant's mother later called to the store and collected the wages and agreed at the hearing that 'she had words' with the manager in a heated exchange. The woman from the centre for the unemployed states that she returned the uniform later that day.
5.7 In arriving at a conclusion as to the veracity of the allegations of sexual harassment I am mindful of the fact that there are no witnesses, no dates, no contemporaneous record of the alleged incidents or other corroborating evidence other than that of the complainant's mother who refers to her anger at hearing of the alleged harassment and the complainant's boyfriend's mother, who has been told of the allegations and who is fully supportive of the complainant. On the other hand witnesses for the respondent, including two female witnesses, have given evidence in relation to the poor quality of the complainant's work and the circumstances in which her employment was terminated, their belief that no sexual harassment took place at the store, both from their own personal experience and their awareness of what goes on in the shop, and the absence of any allegations being taken up with store management. It is understandable of course that a young girl in the complainant's position would find it extremely difficult to raise the issue of sexual harassment with management if the alleged perpetrators are the co-owner and manager. It is also unlikely that she would have any knowledge of security videos and how they might be used to substantiate a complaint, especially as the same management team had control over them. However having said that, I am influenced by the evidence of the two female members of staff who questioned the complainant's motivation and committment to the job and who attached no credulity to the allegations. The onus of proof rests in the first instance with the complainant and I must conclude on balance that the complainant has failed to adduce prima facie evidence on which a presumption of discriminatory treatment could be based.
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant on the grounds of her gender in terms of Section 6(2) of the Employment Equality Act, 1998 contrary to the provisions of Section 8 of that Act.
7th December, 2004
1Labour Court in A Company and A Worker EEO885
2Teresa Mitchell v Southern Health Board AEE/99/8