EMPLOYMENT EQUALITY ACTS 1998-2011
DEC-E2015-143
Parties
Monika Zastawna
-v-
B&Q (Ireland) Ltd
(represented by Nichola Harkin, William Fry Solicitors)
File reference: EE/2012/214
Date of issue: 8th December 2015
Keywords: Employment Equality Acts, Family Status, Harassment, Constructive discriminatory dismissal
Dispute
1.1 The case concerns a claim by Ms Zastawna against B&Q (Ireland) Ltd. Her claim is that she was discriminated against on the grounds of family status in terms of 6(2)(c) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’. She also claims harassment on the same ground.
1.2 Through her solicitor, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11th April 2012. On 26th February 2015 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 1st April 2015 as required by Section 79(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 The complainant commenced employment with the respondent as a Customer Advisor in their Liffey Valley store on 31st July 2006. In the complaint form Ms Zastawna outlined that her two year old became very ill (frequent vomiting and a very high temperature) on 24th March 2012 necessitating his attendance in Temple St Children’s hospital. As per procedure she rang the HR Absence line explaining the situation and stating that she was applying for force majeure leave. She also rang her line manager – Mr S - directly. The complainant readily admits that she was due to be conferred from Dublin City University that day and that Annual leave had been refused. Because of this she would have missed her graduation. She had intended meeting her classmates afterwards but due to her son’s illness, she could not. She returned to work the following day. She submitted the relevant form for force majeure leave and attached the medical certificate from the hospital. The Human Resources department said that she needed to speak to her Store Manager Mr D about taking the day as force majeure leave. She brought the request to Mr D’s attention and he said that she would receive her answer by the end of the week. She contacted the HR Department the following Friday (30th March). She submits that she was informed that as she had submitted the medical certificate and that it is clearly was an emergency that it was a matter of course that her application for force majeure leave would be successful. However, the following Monday she was informed by Ms F (Human Resources Manager) that that Mr D had refused that day as force majeure leave and therefore she would not get paid for it. The reason that Ms F gave is that Mr D did not believe it was an emergency situation. The complainant approached Mr D seeking an explanation. He said that she wold send her a letter outlining the reasons. Until the booklet was presented at the hearing she submits that she has never received this letter. Although she never received a written explanation, she submits that she is very hurt that her employer of over five years would believe that she would lie that her son was ill, somehow conspire with the hospital to get a medical certificate because a day of Annual Leave was refused. She submits that only following lodging a complaint with the Equality Tribunal did the respondent reverse this decision.
2.2 The complainant submits she had a few issues with Ms F. When she raised the issue about not receiving a letter about the force majeure leave subsequently, Ms F walked away. When Ms Zastawna asked Ms F to stamp her Child Benefit form, she submits that Ms F said dismissively ‘that is not my job, I have people to do it’. Ms Zastawna submits that Ms F told her that she could not go for lunch with somebody from the same department. The complainant maintains that this is a bit hypocritical as Ms F goes for lunch every day with two others from Human Resources.
2.3 On an other occasion when the complainant took a day of Annual leave because her son was ill, the complainant submits that Ms F asked why her family could not look after him. Ms Zastawna is Polish and her family of origin live there. Her partner is disabled after a serious accident (c7 fracture) and he requires care also.
2.4 Ms Zastawna her line manager (in charge of Décor) – Mr S treated her differently to her co-workers. She submits that he ignored her on a few occasions. Once when she was chatting with colleagues when the shop was quiet, he ordered her back to work but said nothing to the others. On another occasion Ms Zastawna maintains that Mr S said to her ‘I am watching you’. She maintains that he used to ring her to return early from her breaks which he would not do to other colleagues. She also submits that she was blamed for other colleagues’ mistakes. Ms Zastawna submits that he often shouted at her in front of customers. On one occasion a customer corrected him on the way he spoke to her.
2.5 Ms Zastawna said that she asked Mr S to allow her to swap a day off as her partner had a hospital appointment. She submits that he became irritated and said he went through 14 babysitters when his children were young and asked could she not get somebody else to babysit. She submits that he went on to say ‘that is your problem that you have a baby because that was your choice’.
2.6 The complainant submits that she was anxious to get promoted which is why she undertook a degree course in Business Management and Economics. She submits that S refused to put her forward for promotion even though she had received very positive feedback from customers and other managers. She submits that he used to scoff at her studies and said that will be no good to you in B&Q.
2.7 Ms Zastawna submits that she had got on very well with her previous managers in B&Q but that Mr S seemed to have an issue with her efforts to better herself as well as having caring responsibilities outside the workplace.
2.8 She submits that things became so bad that she had to resign from B&Q on 31st May 2013 and therefore is claiming constructive discriminatory dismissal. Before doing this, she raised these issues with Ms F. Ms Zastawna submits that she was upset in the meeting with Ms F as to what had occurred. She submits that Ms F was cold and said that she did not believe her. She submits that is why she did not raise a grievance as per the employee handbook. She maintains her grievance would not have been taken seriously.
Summary of the respondent’s case
3.1 The respondent rejects all allegations of discrimination and/or harassment. It submitted as evidence its Diversity and Equal Opportunities Policy, its Respect for People policy as well as its Flexible Working Policy. They are available to all employees on the respondent’s intranet and are referred to in the Employee handbook which the complainant signed for on receipt.
3.2 Regarding the force majeure payment on 24th March 2012, the respondent points out it was paid on appeal. In direct evidence Mr D said that he had reasonable doubts that she was really using it for her graduation (for which annual leave had been refused) but overturned his original decision on 30th November 2012. The respondent points out that force majeure leave is covered under the Parental Leaves Acts 1998-2006 and not a matter pursuant to Employment Equality Acts 1998-2011.
3.3 The respondent submits that the complainant cannot add a complaint of discriminatory dismissal subsequent to her EE1 form. They cite County Louth Vocational Education Committee v the Equality Tribunal[1] and Department of Foreign Affairs v Patricia Cullen[2].
3.4 Without prejudice to the above argument, the respondent submits that her employment was terminated because of her personal reason to resign. It submitted her letter as evidence:
08/05/2012
Resignation letter
To whom it may concern
Please accept this letter as my formal notice of resignation from B&Q on 31.05.2013 or as quick as possible. I appreciate all I have learned. This is my personal reason. Thank you for the opportunity to work here.
Sincerely
Monika Zastawna
Lighting
The respondent argues that they cannot be expected to look beyond what is stated in the letter. They accepted that she resigned for personal reasons and cannot now be expected to defend a constructive discriminatory dismissal.
3.5 Regarding the issues raised by the complainant, the respondent argues that they are either minor or untrue. The respondent cites 4 complainants v CH Kane regarding this.[3] Mr S gave direct evidence at the hearing. He stated that he would never make comments like what is alleged as he is a father and has lost a baby.
Conclusions of the Equality Officer
4.1In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is family status.
4.2 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’[4]
4.3 There are three issues for me to decide:
(i) Was Ms Zastawna discriminated against by B&Q Ireland Ltd in relation to her conditions of employment as per Section 8 (1)(b) on the ground of family status?
(ii)Was the complainant harassed in terms of Section 14A(7) and whether the respondent has a viable defence against a claim of harassment as per Section 14A(2) of the Acts?
(iii) Has the complainant established a prima facie case of constructive discriminatory dismissal and has the respondent failed to rebut it?
Conditions of Employment
4.4 The respondent is correct to say that force majeure leave normally falls under the Parental Leave Acts. However, Section 101 and 101A of the Employment Equality Acts sets out specific circumstances restricting a complainant from dual avenues of redress. This is not one of them. Had the Oireachtas intended to curtail an employee’s right in that respect, it would have specifically legislated for same. Consequently, I have jurisdiction to examine the initial refusal of the force majeure leave in the context of discriminatory treatment on the grounds of family status. The reason Ms Zastawna sought this leave is that she was a mother of a sick toddler on the relevant day. While the refusal of Annual Leave for her graduation was churlish by Mr S, it does not form part of my consideration in this investigation. People get sick at inconvenient times. Ms Zastawna was sufficiently worried about her son to bring him to hospital. The hospital provided a medical certificate which clearly said her child attended on the relevant day and gave contact details. She fully complied with the respondent’s policy on applying for leave. I share the complainant’s incredulity that her employer seemed to believe that she would bring a healthy child to hospital and that the hospital was complicit in this elaborate conspiracy simply for a day off. It clearly was an emergency situation and the leave should have been granted when it was applied for.
4.5 I fully accept the complainant’s contention that decision would never have been reversed had she not lodged a complaint to the Equality Tribunal. As it was, this U-turn took place seven months after the leave had been refused. In the meantime it caused some distress to the complainant. Therefore, I am satisfied that the complainant has established a prima facie of discrimination on the conditions of employment and the respondent has failed to rebut it.
Harassment
4.6 Harassment is defined in Section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating hostile, degrading, humiliating or offensive environment for the person.
4.7 I do not find the conduct by Ms F in Paragraphs 2.2 and 2.3 to be harassment within the meaning of the Acts although it falls short of best practice in Human Resources Management. However the conduct of Mr S described in Paragraphs 2.4 to 2.6 is a different matter. I prefer the complainant’s evidence as to what occurred. It constitutes harassment as it was linked to her family status and had the effect of creating an intimidating and hostile work environment for the complainant.
4.8 It is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effects. The respondent’s ‘Diversity and Equal Opportunities Policy’, its ‘Respect for People Policy’ documents are adequate. However, as S.I. 78 of 2002 states ‘employers will not be able to rely on an excellent policy if it has not been effectively implemented’[5]. Ms Zastawna approached Ms F about this ongoing harassment. I accept the complainant’s evidence that Ms F said to her that she did not believe her. This is not an appropriate response from a Human Resources professional. Without doubt, Mr S’s ongoing harassment of Ms Zastawna and the respondent’s failure to reverse its effects (or even investigate it) was a factor in the complainant resigning. Therefore the respondent is not entitled to avail of the 14A (2) defence.
Constructive Discriminatory Dismissal
4.9 The respondent has contended that the complaint of constructive discriminatory dismissal is not properly before me. I was quite surprised by the two cases the respondent chose to cite. Neither assists their case. In Branigan, McGovern J specifically states in 3.3 that:
Section 77 6(A) of the Acts goes on to provide :.-
“A) For the purposes of this section-
(a) discrimination or victimisation occurs-
(b) (i)if the act constitution it extends over a period, at the end of the period”.
This provision envisages a case of continuing discrimination with the time limit referable to the point which the discrimination ended.
The complainant has argued both in written and direct evidence that the discrimination continued after she had submitted her EE1 form until she resigned on 8th May 2013. Therefore, as per Brannigan and McGovern J’s appropriate quotation from the Acts a time limit issue does not arise.
4.10 In the Cullen case, the Labour Court allowed a letter, written 18 months (19th September 2008) after Ms Cullen lodged her complaint to the Equality Tribunal (5th April 2007) outlining events which could amount to victimisation (but the complainant in that case did not expressly allege victimisation in the letter nor did she make a specific request to amend her EE1 Form) to be investigated as a victimisation complaint properly before it. As the Equality Tribunal has passed on the letter of 19th September to the respondent in that case, the respondent was on notice of the victimisation complaint. That the Labour Court subsequently found in that case that the complainant was not victimised is not relevant to the point the respondent is attempting to make in this case. The Labour Court clearly states in Cullen that ‘by analogy with the practice in civil proceeding in the ordinary Courts, a complainant should be permitted to amend his or her original claim whether the justice of the case requires it’. Therefore the complainant is allowed to amend her case without filling out another EE1 form and neither of the cases cited by the respondent support their argument otherwise.
4.11 However, I have sympathy with the respondent’s argument that they cannot be expected to look beyond what is stated in the complainant’s letter of resignation which was very amicable. Section 2 of the Acts is where the definition of dismissal is to be found:
‘‘dismissal’’ includes the termination of a contract of employment by
the employee (whether prior notice of termination was or was not
given to the employer) in circumstances in which, because of the
conduct of the employer, the employee was or would have been
entitled to terminate the contract without giving such notice, or it
was or would have been reasonable for the employee to do so, and
‘‘dismissed’’ shall be construed accordingly;
4.12 For the complainant to successfully claim constructive discriminatory dismissal, she would have to prove that the respondent’s conduct was so unreasonable that she had limited options but to resign. By failing to disclose her real reason for resigning she weakens her case of constructive dismissal. Although I have found for the complainant on conditions of employment and harassment, I do not find the events so terrible that the complainant has
established a prima facie case of constructive discriminatory dismissal.
4.13 In considering redress, I am cognisant that the respondent did mend its hand after the complainant lodged a complaint regarding the force majeure issue and that the harassment was not on the grave end of the scale.
Decision
5.1 I have concluded my investigation of Ms Zastawna’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i)Ms Zastawna was discriminated against by B&Q Ireland Ltd in relation to her conditions of employment as per Section 8 (1)(b) on the ground of family status
(ii) the complainant was harassed in terms of Section 14A(7) and the respondent has not a viable defence against a claim of harassment as per Section 14A(2) of the Acts
(iii) the complainant was not discriminatorily dismissed on the ground of family status
5.2 In accordance with Section 82 of the Act, I order the respondent:
pay the complainant €10,000 in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms Zastawna’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
_______________
Orlaith Mannion
Adjudication Officer/Equality Officer
[1] [2009]223 JR
[2] Labour Court Determination No. ADE
[3] Equality Tribunal Decision DEC-E2014-093
[4] EE5/1986 Gibney v Dublin Corporation
[5] Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 [S.I. No 78 of 2002]