EQUALITY OFFICER'S DECISION NO: DEC-E/2010/022
(REPRESENTED BY A TRADE UNION)
AN AIRLINE COMPANY
(REPRESENTED BY COUNSEL INSTRUCTED BY
A FIRM OF SOLICITORS)
File No: EE/2007/223
Date of issue 5 March, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 14A, 77 and 79(3)A - sexual harassment - timelimits - reasonable cause - employment status - contract of employment
This dispute involves a claim by a female complainant that she was sexually harassed by the respondent contrary to section 14A of the Employment Equality Acts, 1998-2007. The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that she referred her complaint to this Tribunal outside of the timelimits prescribed at section 77(5) of the Acts.
2.1 The complainant worked as a cabin crew member on the respondent's aircraft from May, 2004 until mid-November, 2005. The respondent states that during this period she was only a direct employee of it from 24 August, 2005 until 16 November, 2005, when she resigned her position of her own volition - for the remainder of that period she was an agency worker employed by another organisation. The respondent asserts that the complainant ceased to be one of its employees on 16 November, 2005, that she did not refer her complaint to the Tribunal within the timelimits prescribed at section 77(5) of the Acts and the Tribunal has therefore no jurisdiction to investigate her complaint. Without prejudice to this argument the respondent further submits that the complainant has failed to demonstrate circumstances which amount to "reasonable cause" in terms of section 77(5)(b) of the Acts enabling the Tribunal to extend the period for referral of her complaint in accordance with that provision. The complainant rejects these arguments and submits she was an employee of the respondent until mid-June, 2006. She further submits that she has shown "reasonable cause" to enable her avail of the time extension provided at section 77(5)(b) of the Employment Equality Acts, 1998-2007.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2007 to the Equality Tribunal on 4 May, 2007. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 7 September, 2009 - the date the complaint was delegated to me. I decided to investigate the questions of the employment status of the complainant at the relevant time and the timelimit matter as preliminary issues in accordance with section 79(3)(A) of the Acts. Submissions were received from both parties and a Hearing on the matter took place on 4 December, 2009. An issue arose in the course of the Hearing on which the complainant's representative was given a period within which to file a submission. This original deadline was extended until 22 January, 2010. However, the complainant's representative did not adhere to the revised deadline and I have proceeded to Decision on the matter on the basis of the evidence adduced by the parties to date.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she was employed by the respondent as a cabin crew member between May, 2004 and 16 November, 2005 when she resigned her position in order to take up an offer of a six month fixed-term training contract as a Second Officer Boeing 737-800 with the respondent. The complainant states that she signed this contract on 16 December, 2005 and commenced on the pilot training programme with the respondent's nominated external training body (SAS Academy). She adds that during this training period - in early January, 2006 -she met with representatives from both the respondent and the Academy and was informed that her training was suspended as she had failed to meet the required standards. The complainant states that as a result of this she never completed the required "base check" element of her training and did not therefore proceed to formal training as a Second Officer with the respondent as set out in the fixed-term training contract she signed on 16 December, 2005. The complainant accepts that she signed a Letter of Understanding with the SAS Academy on 18 November, 2005 to complete the pilot training programme and that she paid the Academy direct almost €27,000 for this service. It is submitted that as the respondent selects the trainer, was involved in monitoring the training and informing the complainant her training was suspended, that the relationship between the respondent and complainant was one consistent with a contract of employment in terms of the Acts.
3.2 The complainant states that the alleged sexual harassment of her by a colleague commenced in October, 2004 and that this treatment of her continued, on an almost daily basis, until 28 June, 2006. She states that from the outset she thought the alleged treatment of her was unlawful. She adds that the first occasion she notified the respondent of the alleged treatment of her was by e-mail dated 9 May, 2006 to her base captain. The complainant states that she received a response to this e-mail from the respondent's HR Director two weeks later but she refused to name the alleged harasser as she felt legally constrained from doing so. She adds that she had hoped at the time to resolve her differences with the respondent and sought a meeting to discuss same. When it became apparent that this was not going to happen she made contact with the trade union in June, 2006 and the matter progressed from there.
3.3 The complainant accepts that she did not refer her complaint within the six month timelimit prescribed at section 77(5)(a) of the Acts. It is submitted on her behalf that she suffered severe distress, humiliation and trauma as a result of the alleged harassment of her. In addition, she perceived the approach which the respondent appeared to be adopting - naming and confronting her alleged harasser - as a hostile and adversarial process which she was unable to deal with. It is stated on her behalf that the complainant had neither the capacity nor confidence to embark upon such a route and that it was only after a period of counselling that she felt able to process her complaint to this Tribunal. Finally, it is stated on the complainant's behalf that in June, 2006 she had two pressing problems - the ongoing alleged sexual harassment of her and the recovery of the money she had given the SAS Academy for her training. Given her financial circumstances at the time she prioritised recovery of the money. It is submitted by the complainant's trade union that these factors constitute reasonable cause in terms of section 77(5)(b) of the Acts. In support of its assertion on this the trade union seeks to rely on the Determination of the Labour Court in Cementation Skanska v Tom Carroll .
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that she was one of its employees at any time after 16 November, 2005, when she resigned her position as a cabin crew member to commence a pilot training course with the SAS Academy. It states that this training course is operated and controlled by the SAS Academy, that it (the respondent) has no involvement in same and that the complainant paid a fee for the training direct to the SAS Academy on foot of a written contract between her and that Academy. The respondent accepts that the complainant was offered a six month fixed-term training contract with it as a Second Officer Boeing 737-800. It adds that this contract was however, subject to her successful completion of her training with the SAS Academy. It states that as the complainant failed to successfully complete this training the contract was never activated. It submits therefore that the complainant ceased to be an employee on 16 November, 2005 when she voluntarily resigned as a member of cabin crew and that any obligations the respondent had towards her terminated that day.
4.2 Without prejudice and in addition to the arguments set out in the preceding paragraph, the respondent submits that even if it is found that the complainant continued to be an employee under the fixed-term contract for Second Officer, the latest she would continue to be an employee was 15 June, 2006. She did not refer her complaint to the Tribunal within six months of this date and therefore she must show "reasonable cause" in terms of section 77(5)(b) of the Acts to have the timelimit for referral of her complaint to be extended under that provision. The respondent submits that the complainant has adduced no medical evidence to support her assertion that she was traumatised as a result of the alleged harassment of her or that she underwent a period of counselling. It adds that the complainant first informed the respondent of the alleged treatment on 9 May, 2006 and submits that its response was prompt and appropriate in the circumstances - requesting details of the alleged harasser so that it could proceed with an investigation. The complainant refused to co-operate with this process and the respondent was unable to process the matter any further in the circumstances. The respondent states that at the time the complainant had the benefit of legal advice and had also liaised with her trade union. It adds that her complaint was not, however, referred to the Tribunal until May, 2007 - at least nine months after she had spoken with the union and twelve months from the time she had obtained legal advice. It submits therefore that the complainant has failed to show "reasonable cause" for the delay in referring her complaint to the Tribunal. In support of this assertion the respondent refers to the Labour Court Determination in Cementation Skanska v Tom Carroll and the High Court judgement in Minister for Finance v CPSU, PSEU and IMPACT
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me is (i) when did the complainant cease to be an employee of the respondent and (ii) whether or not the complainant has shown "reasonable cause" in terms of section 77(5)(b) of the Employment Equality Acts, 1998-2007 and thus enable her avail of the extension of time prescribed in that provision. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 I propose to deal with the issue surrounding the employment status of the complainant in the first instance. It is common case between the parties that the complainant voluntarily resigned her position as a member of its cabin crew with effect from 16 November, 2005. The respondent submits that the complainant was never an employee after this date. The complainant contends that she was engaged (by the respondent) on a fixed-term contract of employment for six-months from 16 December, 2005 as a cadet pilot. Consequently the complainant submits that she continued to be an employee until 15 June, 2006 and that any statutory period for referring a complaint to this Tribunal should accrue from that date.
5.3 The respondent accepts that the complainant was offered a six month fixed-term training contract as a Second Officer Boeing 737-800. A copy of this Contract was furnished to the Tribunal. Clauses 1 and 3 of this contract clearly state that it will commence on successful completion of the complainant's base check training with the approved Training School - in this case the SAS Academy. The complainant accepted in the course of the Hearing that she never completed this base check training. She also confirmed that she never received any payment of the training pay of €15,000 provided at Clause 5 of the contract. A fundamental element of a contract is "consideration". In the employment area "consideration" normally takes the form of the payment of a salary or wage by the employer to an employee in return for that person's labour. This fundamental element was lacking in the instant case. In addition, I note that the contract was never signed by or on behalf of the respondent. Section 2 of the Employment Equality Acts, 1998-2007 defines an employee as someone who, inter alia, works under a contract of employment. In light of the foregoing I find that the aforementioned fixed-term contract was never activated and consequently, the complainant was not an employee for the purposes of the Acts on foot of it.
5.4 The question remains as to whether or not the complainant was an employee of the respondent during the period from18 November, 2005 - when she contracted with the SAS Academy to provide her with the "type rate" training programme and 17 January, 2007 when she was informed this training was terminated due to her failure to achieve the required standards. A copy of this Agreement was furnished to the Tribunal and the complainant confirmed that she applied direct to the SAS Academy for a place on this training course and paid direct to it the sum of circa. €27,000 for the training. I am satisfied therefore that the arrangement between the complainant and the SAS Academy was a personal contract for the provision of services between them. It is clear that members of the respondent's training personnel were involved in the process and liaised with Mr. J (an SAS Academy official) as regards the complainant's performance on the training course. However, the extent and nature of their involvement cannot extend to creating a relationship between the complainant and respondent to one consistent with a contract of employment. I find therefore, that the complainant was not an employee for the purposes of the Acts during this period.
5.5 The substantive element of this complaint involves allegations of sexual harassment. Section 14A of the Employment Equality Acts, 1998-2007 requires the victim of sexual harassment to be "an employee" as defined by the Acts at the relevant time and provides that the sexual harassment constitutes discrimination of the victim in terms of that person's conditions of employment. In a recent case the Labour Court held, when addressing allegations of discrimination in relation to the complainant's conditions of employment that "Logically, such discrimination can only arise when a complainant is actually in employment. In this case the complainant ceased to be employed by the respondent on.... and any discrimination upon which he could ground a claim for redress under the Act could only have occurred before that date.". In light of my comments in the preceding two paragraphs, I find that the last date on which the complainant was an employee of the respondent was 16 November, 2005. Therefore the last date of any alleged unlawful treatment of her contrary to the Acts was that date and the timelimits prescribed at Section 77(5) of the Acts commenced that day. The complainant did not refer her complaint within those timelimits and the Tribunal has no jurisdiction to investigate the remainder of her complaint.
5.6 In the interest of completeness - so that the parties have a decision on the question at first instance and for ease of both parties as regards exercising their statutory entitlement of appeal under section 83 of the Acts, I will deal with the second element of this matter - whether or not the complainant has shown "reasonable cause" in terms of section 77(5)(b) of the Acts. In Cementation Skanska v Tom Carroll the Labour Court addressed the issue of "reasonable cause" in terms of the Organisation of Working Time Act, 1997. However, the rationale adopted by the Court in that case is applicable to the instant case. The Court stated that in considering if reasonable cause exists
"it is for the complainant to show that there are reasons which explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant's failure to present the claim within the six-month timelimit must have been due to the reasonable cause relied upon.....and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present, s/he would have initiated the claim in time. The length of delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.....".
Such an approach is entirely consistent with that approved by Laffoy J in Minister for Finance v CPSU, PSEU and IMPACT .
5.7 In the instant case the following facts have been established, on balance, in the course of my investigation -
the complainant was of the view that the alleged treatment of her was unlawful from the outset - October, 2004.
the complainant made a written complaint to the respondent about the alleged treatment of her on 9 May, 2006 and then refused to co-operate with the process initiated by the respondent.
at the time of writing that letter the complainant was aware she could bring a claim against the respondent as she had obtained legal advice and it is clearly stated by her as one of her options.
the complainant made initial contact with her trade union in April, 2006 and had further discussions with officials in and from September, 2006.
the complainant was aware of the existence of this Tribunal from May, 2006 and that she could refer a complaint here.
contrary to what was initially submitted on her behalf the complainant did not undergo a period of counselling at that time to assist her with the stress and trauma she experienced. Instead she attended her local General Practitioner on just one occasion who put her on some form of medication (no details could be provided by the complainant) for a period of two weeks in June, 2006.
the complainant returned to work as a freelance cabin crew member around September, 2006.
the complainant made a conscious decision in May/June, 2006 to prioritise recovery of the money she had paid to the SAS Academy instead of lodging her complaint with this Tribunal thus preserving her rights.
In light of the foregoing I find that the complainant has failed to establish reasons which both explain the delay for her referring her complaint to this Tribunal and offer a justifiable excuse for it. It follows therefore that she is not entitled to avail of section 77(5)(b) of the Acts.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint under section 79(3)(A) of the Employment Equality Acts, 1998-2008 and in accordance with section 79(6) of those Acts I issue the following decision. I find -
(i) that the complainant has failed to establish reasons which both explain the delay for her referring her complaint to this Tribunal and offer a justifiable excuse for it. It follows therefore that she is not entitled to avail of section 77(5)(b) of the Employment Equality Acts, 1998-2007.
(ii) that the complainant did not refer her complaint to this Tribunal within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2007 and this Tribunal has no jurisdiction to investigate the remainder (substantive aspects) of her complaint.
5 March, 2010