ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00000458
| Complainant | Respondent |
Anonymised Parties | A Worker | Food Service Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00000652-001 | 05/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00000652-002 | 05/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00000652-003 | 05/11/2015 |
Date of Adjudication Hearing: 08/08/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 79 of the Employment Equality Acts, 1998 - 2015,] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
These complaints in addition to complaints under the Terms of Employment (Information)Act 1994, the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000 were heard over the course of 5 separate hearing days. At the penultimate hearing on the 3rd.April 2017, the hearing was adjourned after 6 hours and the parties were advised that a date would be set for the final hearing in due course to hear any out standing evidence from the claimant as well as direct evidence and cross examination of the respondent. The final hearing took place on the 8.08.17 – the claimant attended with her representative but the respondent did not attend and did not disclose the reason for his non attendance.
The respondent replied to correspondence from the WRC on the 1st.Sept. 2017 regarding any policies that were in place concerning dignity at work and or harassment/ sexual harassment. Further correspondence was received from the claimant’s representative dated the 26th.Feb 2018 and the respondent’s representative on the 28th.Feb.2018.
Payment of Wages Act 1991
Summary of Complainant’s Case:
The claimant was originally engaged as a delivery person with the respondent from July 2012- April 2013 – she returned as a Stores person at the request of the respondent in July/August 2013 .The claimant initially worked 15 hours per week and her hours increased to 25 hours per week when she took on maternity cover. It was submitted that the claimant was never furnished with a payslip in the course of her employment with the exception of one when she resigned from the employment in Sept. 2015 owing to alleged intolerable working conditions. The payslip dated the 16th.Sept. 2015 recorded a payment of outstanding bank holidays and 4 hrs holidays amounting to €278.It was submitted that the respondent incorrectly deducted the sum of €188 and that this constituted an illegal deduction under the Act. |
Summary of Respondent’s Case:
The respondent denied that there was any breach of the Act and asserted that there was no deduction made for illness benefit. It was submitted that the respondent was required to record illness benefit on the payslip and the provisions of a clause in www.ros.ie was invoked : “With affect from 1 January 2012 all taxable illness benefits and occupational Injury Benefits paid to PAYE Employees by the Dept. of Social Welfare are to be included with taxable pay.” It was submitted that this was a record of payments made to the claimant , that it was not a deduction and that the respondent was simply complying with the law and demonstrating that any social welfare payments must be consolidated as part of pay. It was submitted that the claimant had failed to raise the matter directly with the respondent who could have clarified this. It was submitted that the payslips record accurately that the claimant received €90 from the respondent and €180 from Social Welfare. |
Decision:
Section 41 of the Workplace Relations Act 2015 and/or The Payment of Wages Act 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have reviewed the evidence presented at the hearing and note the polarised positions of the parties. I am satisfied that the payslip records €90 owing to the claimant arising from outstanding holidays and bank holidays and €90 was paid to the claimant. I accept the respondent’s contention that no deduction was made and consequently I do not uphold the complaint. |
Unfair Dismissals Acts 1977-2015
The following addresses solely the complaint of constructive dismissal
Summary of Claimant’s Position
The claimant submitted that she was subjected to ongoing bullying and harassment and intolerable working conditions during the course of her employment which had a detrimental effect on her health and well being. It was submitted that additionally she worked 25-30 hours per week and received total cash payment of €200 irrespective of the number of hours she worked. It was submitted that the claimant complained to her employer without success and that she ultimately sought legal advice following which representations were made by the legal representative to the respondent initially by letter dated 15th.April 2015.
It was submitted that in response the employer caused a number of staff to “contact the claimant in an effort to coerce her into withdrawing her complaints …..” and that she was approached by an Investigating Officer from the DSP seeking to coerce her into withdrawing her complaints. It was submitted that arising from this 2 staff members were told their hours would be cut and they were advised that the claimant had made a complaint to Revenue. It was submitted that the claimant felt very threatened by this coercion.
Ultimately the respondent appointed an external investigator Mr.McP on agreed terms of reference to investigate the claimant’s complaints. His findings were issued on the 3rd.July 2015 and according to the claimant’s representative, it raised serious concerns in terms of fairness and procedure. It was asserted that in the course of a meeting with the Investigator in June 2015 , Mr.McP stated that he had contacted NERA on behalf of the respondent and obtained an adjournment on behalf of the respondent. It was submitted that this raised alarm bells for the claimant in terms of the independence of the investigator but because the investigation was underway it was considered prudent to give the respondent the benefit of the doubt. The claimant took serious issue with the report and documented them through her solicitor on the 15th.July 2015.It was submitted that despite repeated reminders, the claimant’s concerns were ignored and on the 4th.Sept. 2015 she requested her P45 as it was clear that her concerns were not going to be dealt with and given the nature of the dispute and the ongoing intimidation, she felt that the employer made it impossible for her to return to work. It was submitted that it was noteworthy that the respondent did not attempt to persuade the claimant to withdraw her resignation.
The claimant’s representative summarised the ensuing exchanges between the parties- the claimant’s representative asserted that his letter of the 15th.July15 challenging the Investigators report was not responded to until the 13th.Oct. 2015 – it was submitted that the respondent dismissed the claimant’s concerns and rejected the expressed reservations by the claimant’s witnesses in relation to the evidence they gave to the investigator and which supported the claimant’s allegations against the respondent. It was submitted that the investigator had confirmed at the Rights Commissioner hearing on the 16th.February 2016 that he was now representing the respondent in the case and he would not be responding to the correspondence from the claimant’s representative.
It was submitted that given the nature of the claimant’s complaints , the ongoing intimidation and harassment , the failure to conduct a fair and impartial investigation , the claimant had no option but to consider her employment terminated. It was contended that matters were further compounded by the fabrication of payslips , the denial of monies due , the attempt to bring the claimant into conflict with DSP ad the corrosive effect of the employment relationship made it impossible for the claimant to continue in employment. It was submitted that the following additional factors should be taken into account in the complaint of constructive dismissal – the undermining of the claimant by disclosing her medical condition to other staff and using it to undermine , bully and harass her ; the retention of the purported independent investigator to represent the respondent with NERA and the WRC and the consequential potential for bias , the discounting of evidence offered by the claimant’s witnesses Ms.PB and Ms.MG; text messages from the respondent to other staff in which they were allegedly threatened to prevent them giving evidence on behalf of the claimant. It was submitted that the text messages showed the level of intimidation levied at the claimant and the efforts to isolate her from her colleagues. It was submitted that the Investigator had failed to carry out a proper investigation and that consequently his report should be set aside. It was submitted that the absence of an independent investigation denied the claimant her contractual rights and broke her trust in the respondent. The provisions of O’Kane v. Dunnes Stores Limited [2005]ELR 337 were invoked in support of the claimant’s complaint of constructive dismissal and SvA Named Organisation DEC-E2006-025 was invoked in support of the claimant’s arguments about the deficits in the Investigator’s report.
The booklet of text messages included messages from other staff members stating that the respondent was a bully , a communication from the claimant to the respondent stating that she had been diagnosed with chronic anxiety and depression , communications from the respondent to the claimant saying that “I’ll undue what the quack does” and “ I won’t hire anymore hypochondriacs”, a text from a staff member stating that when she asked why her hours were cut , the respondent replied that the claimant had reported to revenue about extra hours.
It was submitted that the respondent had asserted that the claimant attempted to ruin the respondent’s holidays by submitting a sick cert just as he was leaving the premises on the 11th.March 2015.It was advanced that the text messages submitted into evidence show the claimant was on sick leave from the 3rd.March , that this was confirmed by her sick leave certificate from the 3rd.-8th.March 2015 and that she did not return to work thereafter.
The claimant gave evidence of her experience of working with the respondent and emphasised that the impact of the conflict and arguments had a profound effect on her mental health. She asserted that after the respondent assisted in the furnishing of her flat , she was very grateful but submitted that his attitude changed and he could become rude and vulgar. She took issue with a number of submissions about the respondent’s benevolence to her and stated that she never asked him to lie for her. She asserted that the respondent told her to sign on with Social Welfare because her hours were not safe. She stated that she expressed concerns about working across the road from Social Welfare and he assured her she would not be seen – “ so he promised when the shop picked up he would make me full time staff. I agreed because it was temporary”.
When she subsequently challenged the respondent about not paying her properly and above board, she alleged that he got really angry and said that if she brought social welfare down on them, she would loose her job , her social and her house.
The claimant submitted that after she was diagnosed with depression , she was unable to work more than 2-3 days per week. The claimant asserted that previous managers at the restaurant were well aware how the claimant was treated by the respondent. The claimant submitted a catalogue of text/what’s app messages in support of her allegations against the respondent. The claimant asserted that the respondent was well aware of her health challenges , that he referred to her therapist as a quack and made demeaning comments to her on a frequent basis. The claimant asserted that the events of the 3rd.March were the last straw for her ; that she could no longer tolerate the working environment and went to her GP who certified her on stress related illness from the 3rd.-8th.March 2015.The claimant’s representative contended that it was inconceivable that the claimant would have gone to the trouble and expense of obtaining a sick certificate and then attended work.
The booklet of text messages included messages from other staff members stating that the respondent was a bully , a communication from the claimant to the respondent stating that she had been diagnosed with chronic anxiety and depression , communications from the respondent to the claimant saying that “I’ll undue what the quack does” and “ I won’t hire anymore hypochondriacs”, a text from a staff member stating that when she asked why her hours were cut , the respondent replied that the claimant had reported to revenue about extra hours.
Text messages between the claimant and respondent were submitted in evidence by the claimant.The respondent did not dispute the veracity of the texts and did give any direct evidence to challenge them. The text messages included the following exchanges :
Claimant to Respondent “Appealed my medical card on the basis of been diagnosed with chronic anxiety and depression.I was one euro over and just forked out €48 on medication.Ur better off not working .Be a layabout and its all paid.Rant over.”(Dec.2014)
Respondent to Claimant” What time are you back today.C who was covering you is sick”
Claimant to Respondent”Ah no ??I should be back for 11.I’ll go over then”
Respondent to Claimant” Great.I’ll undo what the quack does” 5Jan.2015
Claimant to Respondent “Can I go home early to go over to …to docs”
Respondent to Claimant” No”
Claimant to Respondent “Thanks – U wonder why people ring in sick then”
Respondent to Claimant “ I wont hire anymore hypochondriacs”.
Claimant to Respondent “ Okey Dokey.Nite pops”
The claimant’s witness MG gave evidence of witnessing the respondent pinching the claimant’s side and the claimant telling him to f--- off when he would put his arm around her to cheer her up. She recalled being asked by the respondent if she was on medication like the claimant. She submitted that this evidence was relayed to the Investigator in her interview with him and when she learned from the claimant that the Investigator found no corroboration of the claimant’s allegations , she clarified her recollection of the meeting in a written statement. The witness recalled vulgar references by the respondent to the claimant when he would pinch her side – she asserted that all of this evidence was given at her meeting with the Investigator - she stated he was scribbling during the interview and she recalled crying during the interview. She could not understand why her evidence was not mentioned in the investigators report.
Ms.PB in her direct evidence stated that she remembered specifically telling the Investigator about the claimant chopping vegetables one day – the respondent came out of his office effing and blinding the claimant and asked her did she take her medication today – the claimant replied that she did and the respondent told her they were not effing working. Ms.PB stated that she also told the investigator that the respondent deliberately belittled and put down the claimant .The witness gave evidence that she witnessed the respondent shouting and standing over the claimant aggressively and she took him to task one day and told him to stop – the respondent told her to mind her own effing business and get back to work- the witness stated that she told the Investigator how upset the claimant was over this incident. Ms.B stated that she told the investigator that she had left the employment because of the way the respondent had spoken to her over the phone and on the street about a row that had erupted in relation to her tax. She told the investigator that it was common knowledge that the claimant was on medication for her mental health issues and that the respondent spoke of it and belittled the claimant. She stated that the claimant was treated very unfairly , that the respondent was constantly on her back and that she was often crying.The claimant stated that with the exception of the above incident where she had intervened with the respondent , she did not complain about his inappropriate behaviour. She said that it was normal for him to be too familiar with staff. The witness stated that she volunteered to meet with the Investigator but he declined and interviewed her by phone for approx. 80 minutes during the course of which she cried on a number of occasions.
Summary of Respondent’s Position
The respondent set out the background to the claimant’s recruitment into the company and gave examples of what was described as the respondent’s generosity to the claimant in assisting her with finance to arrange the furnishing of her apartment.
It was submitted that prior to her resignation , at” no time did the claimant notify any company staff of any issues regarding her employment and no sick leave had been taken by her or doctor’s certificates furnished to the company”. It was submitted that contact was made on a number of occasions after the claimant walked out , to enquire about the claimant’s well being. It was submitted that the claimant reported for work on the 9/10th.March 2015 as per the roster – the respondent was departing on a vacation on the 11th.March and it was contended that the respondent understood that the claimant was making a deliberate effort to ruin the respondent’s holiday. It was submitted that the claimant’s claims of bullying and harassment were addressed by Mr.McP , the Investigator , in his report and that his exhaustive investigation found no corroboration for the claimant’s allegations “ which were without merit”.It was advanced that no complaints were made by the claimant prior to the 15th.March 2015 about illness and or treatment .
It was submitted that the Investigator was a Senior Consultant in his company with over 30 yeas experience in HR , IR and Health & Safety and a detailed account of his educational qualifications were presented. The investigator’s practise was contacted by the Insurance Brokers for the respondent and the company was recruited to undertake a detailed independent investigation into allegations of Sexual Harassment , Bullying and Harassment and other complaints made by the claimant against the restaurant .It was submitted that Mr.McP’s company operate in a professional and independent manner in all business matters and any suggestion of unprofessional conduct was strongly rejected.
It was submitted that the claimant did not make any allegations of bullying , harassment , sexual harassment or any other related allegations when she resigned her delivery job in April 2013.It was submitted that the claimant commenced work as kitchen staff in July 2013.The respondent took issue with the claimant’s account of events as relayed to Dr.JL at her assessment on the 15th.Dec.2015.The respondent submitted that the claimant could only work part time as she was also receiving Social Welfare payment and could only work a maximum of 19 hours per week – if she exceeded this she would loose her Social Welfare benefit. It was submitted that the claimant had advised Dr.JL that she was not well enough to work full time – it was advanced that the employer was not advised by the claimant that she was not well enough to work full time , “ contrary to Safety , Health & Welfare at Work Act 2005”.
It was submitted that the custom and practise at the time of the NERA investigation was to give payslips on request “This was done to prevent employees leaving payslips lying around the restaurant which caused issues among the employees ..As part of the internal investigation , Mr.McP recommended that all employees receive their pay slips at the time they are paid. At no stage , during either period was the Employer advised by the claimant that there was an issue regarding pay slips”.
It was submitted that the first time the respondent became aware of the claimant’s allegations of bullying , harassment and/or sexual harassment was in correspondence from the claimant’s solicitor in April 2015.It was submitted that the claimant had a very good relationship with the respondent’s wife ; that she babysat her granddaughter and that it “ is reasonable to assume that if indeed there was any alleged instance of Bullying , Harassment Sexual Harassment (which there was not), or any other alleged issues relating to conditions of employment that the claimant would have spoken to Mrs.M and advised her of same”.
It was submitted that following a detailed investigation carried out by Mr.McP ,the investigator stated :
“In my opinion the allegations of harassment as outlined by ….and the subsequent allegations made during the course of the investigation by the claimant do not constitute Harassment as outlined in the Equality Act 1998 – 2011”….
“In my professional opinion the allegations of bullying as outlined by …..and the subsequent allegations made during the course of the investigation by the claimant do not constitute Bullying as outlined in the Code of Practise for Employers and Employees on the Prevention and Resolution of Bullying at Work 2007”.
The following submission was made on behalf of the respondent in response to the claimant’s allegations about coercion to withdraw her complaints:
“The employer did not request Mr.C to meet with the claimant and had no knowledge that such a meeting had taken place. The employer did not request any of his staff to meet with the claimant or discuss any related matter with her. No employees were threatened in any way or told that their working hours would be cut by the employer. No employee has made a complaint of threatening behaviour by the employer. No employee was requested or instructed by the employer to relay any information to the claimant. The independent investigator did raise this issue with the claimant. In the course of the investigation he requested the claimant to inform him of the names of the employees who advised her that other staff were being intimidated. The claimant did not provide this information”. The investigator was advised by the claimant legal advisers that
“ this particular matter does not fall within the scope of your current investigation”.
It was submitted that the appointment of an investigator was at the request of the claimant’s representative , that the cost was borne by the respondent and no objections were raised regarding the terms of reference or the bona fides of the external investigator prior to or during the investigation.
The respondent made a detailed submission on the concerns raised by the claimant’s representative about the Investigators report dated the 15th.June 2015.
The claimant’s representative had argued that the investigator had ignored text messages submitted by the claimant – the respondent contended that the investigator had requested details of the alleged text messages but these were not forthcoming prior to the completion of the report.It was submitted that “ as such they were not included for consideration in the report.”
It was submitted that there were inconsistencies in relation to the claims made by the claimant regarding the respondent’s visits to her home in her exchanges with Dr.JL and her exchanges with the Investigator and it was suggested that the claimant had an unclear recollection of events and timing. In response to the assertion by the claimant’s representative that the claimant’s witnesses would support the claimant’s version of events, the respondent submitted that “ Despite being requested and agreeing to co-operate with the investigation no substantive documents or evidence was forwarded prior to the completion of the report to support the claimant’s version of events”.
It was submitted that there was no requirement under the terms of reference to issue a draft report.
It was submitted that if the claimant believed that the role of the investigator was compromised by virtue of his exchanges with NERA , “ it is reasonable to assume that the claimant would have withdrawn from the process”.
It was submitted that at the time of her resignation , the claimant had been absent from work due to illness since March 2015 – in the interim the respondent “ took no remedial action regarding absenteeism and did not replace the position that was vacant; instead the position was kept open on the basis that the claimant would return to work”.It was asserted that the claimant had been advised through her representative that “ It is a matter of record that your client has at all times been facilitated in her continued employment with our client and her position at all times has been available to her”.
The respondent submitted that the 10 recommendations of the Investigator had been implemented in full.
It was submitted that the allegation of fabrication of payslips and denial of monies due was rejected by the respondent. It was submitted that a forensic examination had been conducted by NERA and no breaches emanated from this inspection.
It was emphasised that the employer was unaware of any issues regarding the claimant’s health and no supporting medical certificates had been produced prior to the claimant’s extended sick leave period commencing in March 2015.The claimant had not notified the respondent of any disease or physical or mental impairment.
It was submitted that the respondent rejected the claim that he disclosed the claimant’s medical condition to another staff member and refuted the allegation that he bullied or harassed the claimant. It was emphasised that the investigation found no evidence of bullying and or harassment by the employer .It was submitted that the “outcome of the investigation was based on a wide ranging series of interviews with current and ex-employees of the restaurant”.
It was advanced that the booklet of text/what’s app messages were forwarded following publication of the report – the investigator requested a copy of text messages but these were not forthcoming. It was contended that the claimant at no stage provided supporting documentation to demonstrate that she had raised her concerns/complaints with the employer during the course of her employment .It was argued that the onus of proof rests with the claimant to prove that the termination of her employment was justified and that all avenues of resolution had been exhausted. The respondent was never appraised of an opportunity to address the alleged negative issues – the matters were first raised by the claimant through her solicitor on the 10th.April 2015.The independent investigator did not uncover any substantive evidence to support any of the claimant’s allegations and he determined that the allegations were without foundation. It was submitted that the respondent had been accused of the most heinous allegations – that they had a major negative impact on his business , his family life and his health. The recommendations of the investigator were implemented without delay. Arising from the claimant’s complaints ,the respondent was the subject of a detailed investigation by NERA and Revenue – “neither of these organisations uncovered any evidence to support any of the related allegations made by the claimant.” It was submitted that NERA would have uncovered an intolerable working environment if it had existed. It was argued that no substantive evidence had been advanced to prove that the employer committed a serious breach of contract. It was contended that Dr.JL’s assessment was based solely on allegations made by the claimant and was devoid of any supporting evidence. It was submitted that the respondent had acted reasonably in their dealings with the claimant and had responded positively and speedily to her representative’s request for an independent investigation and had met the cost of same. The claimant’s position was kept open for her while she was off sick.” The employer had previously shown his bona fides in his relationship with the claimant by rehiring her when she had walked off the job.”It was submitted that this was not the conduct of an unreasonable employer. It was submitted that Dr.JL’s report did not offer any evidential proof that bullying and harassment actually took place or that the employer was directly or indirectly responsible for the alleged behaviour.
It was submitted that the claimant’s recollection of events leading up to her extended sick leave were inaccurate and that the claimant had in fact worked on the 10th.March 2015 – the claimant stated that she went off sick on the 3rd.March .It was contended that the claimant presented at work on the 11th.March with a cert for the 9-15th.March 2015.It was contended that another employee had told the respondent that the cert was delivered to coincide with the claimant’s annual leave and cause inconvenience by requiring an adjustment to the roster. It was contended that a further medical cert was submitted after the 11th.March covering a period from the 3rd.-8th.March.It was argued that the claimant had informed Dr.L that an incident on the 26th.Feb. was the last straw , that she could not take any more and was signed off sick from the 3rd.March 2015.It was contended that the claimant worked a full 2 weeks after the alleged incident on the 26th.Feb.It was contended that had the incident of the26th.Feb. been the last straw “ it would have been reasonable to assume that the claimant would have left her employment on the 26th.February – it was asserted that the claimant went on certified sick leave on the 11th.March and this called into question the veracity of the claimant’s statements and was not “ in line with one of the key requirements to justify a claim of constructive dismissal”.
The investigator was required to attend to give evidence at the hearing on the 2nd.April 2017 in light of the very significant conflict between his conclusions and the evidence of the claimant’s witnesses.
Mr.McP was asked why he had not given the claimant sight of the evidence of the witnesses called by the respondent and he responded that he could not do so as the notes were private and confidential .He was asked to furnish the Commission and the claimant’s representative with the notes taken in the course of the investigation. He asserted there was no requirement under the terms of reference to issue a draft report and that this would have led to inordinate delays. When asked about the methodology used by him in the investigation , he replied no comment. He stated the main reason he had not distributed the witness statements was because of confidentiality. When asked about the conflict between the evidence of the claimant’s witnesses Ms.PB and Ms.MG and his conclusions he stated that they had been unable to furnish dates times and instances of harassment. He stated that the claimant’s representative had offered no comment on his involvement with NERA during the course of the investigation .The investigator was unsure about the chronology of the interviews with the parties and the witnesses or the number of parties interviewed. He surmised that he had 8 face to face interviews and 6 interviews over the phone. When asked how he established the credibility of evidence over the phone – he was unable to comment.The investigator stated that he took all of the evidence into account in arriving at his conclusions – he stated that there were inaccuracies in the claimant’s account of events , that they did nt stack up and specifically referenced the date of the claimant’s last day at work. The investigator stated that he asked the claimant’s representative to furnish him with copies of the text and what’s app messages but he had failed to do so.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have reviewed the evidence presented at the hearing and the voluminous submissions made by the parties.The respondent did not attend the final hearing in August 2017 - consequently no direct evidence was given by him and he was not subject to cross examination.
I have considered the request by the claimant’s representative that the report of the Investigator Mr.McP be set aside on the grounds that it was biased and contained fundamental procedural flaws.
I accept the contention of the claimant’s representative that the intervention by the Investigator with Nera during the course of his investigation was inappropriate and find that such an intervention on behalf of one of the parties to the dispute he was investigating was entirely inappropriate and compromised the investigation from the outset .I note the claimant’s representative’s contention that they did not object at the time as they were awaiting the outcome of the investigation. Mr.McP was unable to clarify the methodology used by him in his investigation and offered no comment when questioned about how he assessed the credibility of witnesses through telephone interviews. .When asked about the conflict between the evidence of the claimant’s witnesses Ms.PB and Ms.MG and his conclusions he stated that they had been unable to furnish dates times and instances of harassment. It is notable that this was not documented in the final report and rather than comment on the evidence submitted by these witnesses , they were dismissed entirely by the Investigaor. It is acknowledged in the respondent’s submission of April 2017 that the text messages exchanged between the claimant and the respondent were raised in the course of the investigation – Mr.McP insists that he requested the claimant to forward them to him and she failed to do so. The claimant’s representative asserted that he presented the text messages to the Investigator and he dismissed them and at no stage invited the claimant to forward the texts. .I note that the Investigator makes no reference in his report either to the presentation of the text messages or any request for them to be submitted prior to the conclusion of the investigation. Given all of foregoing circumstances , I find that the investigation was compromised and flawed and should be set aside .
I have considered the evidence of the claimant , her witnesses and the respondent’s witnesses. The respondent did not give evidence .I note that the respondent did not deny the veracity of the texts. I note that the text messages contradict the submissions by the respondent of being unaware of the claimat’s mental health issues.In a submission to the Commission dated the 26th.Feb. 2018 , the claimant’s representative clarified some of the dates of the texts and the differing font sizes of same. While I acknowledge the conflict between the parties in relation to the claimant’s final day at work , I find on the balance of probabilities that the claimant’s account is more convincing in light of her direct evidence and the medical cert submitted which was dated the 3rd.March 2015 and given that the respondent did not give direct evidence and did not produce any documentary evidence to corroborate his version of events.
I found the claimant’s evidence regarding an intolerable working environment to be credible and I accept that this is corroborated by the text messages exchanged between the claimant and the respondent .I found the evidence of the claimant’s witness Ms.MG in relation to the claimant being pinched by the respondent , in relation to being the recipient of vulgar commentary and in relation to being asked if she was on medication like the claimant to be compelling and credible. Additionally, I found the evidence of MsPB about witnessing the claimant being asked by the respondent if she took her meds and about aggressive belittling behaviour to be persuasive.
I have already determined that the claimant was not furnished with a contract of employment – consequently her opportunites for remedying any grievances , most particularly those directed at the managing director of the company were limited.
It is settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their relations with each other.On the basis of analysis as set out above , I am satisfied that the respondent conducted itself in a manner which was destructive of a relationship of trust and confidence .The claimant awaited the outcome of a fundamentally flawed investigation which did not uphold the claimant’s complaints.In such circumstances and in light of the claimant’s acknowledged mental health challenges and the respondent’s conduct with respect to same, I find the claimant’s failure to exhaust internal procedures was excusable and that she was justified in resigning .Consequently I am upholding the complaint of constructive dismissal and require the respondent to pay the claimant €20,000 compensation within 42 days of the date of this decision.
Employment Equality Act 1998-2004
The following solely addresses the complaints made under the Employment Equality Acy 1998.
Summary of Claimant’s Position
The claimant’s representative submitted that the definition of sexual harassment set out in Section 14 A was significantly more subjective than the original definition – with the reasonableness test having been removed, leaving it to the victim to decide what constitutes unwanted conduct. It was asserted that an expert report had been obtained from Dr.JL – formerly of the anti bullying unit of Trinity College- and her professional assessment described the profound adverse effect of the employee/employer relationship , which it was advanced still continued.It was submitted that the totality of the report was being entered as evidence in support of her complaint and “ the devastating effect it had on her health and welfare”.It was submitted that the claimant would say that her employer made reference to her physique while in the employment , referring to her as a boy and made repeated reference to her weight , physical appearance and the size of her breasts. In or around November 2014 , the respondent called the claimant to his office and asked her to assist him in applying antibiotic cream to his back area. She felt pressurised to do so and became upset after doing it. It was submitted that the respondent then pointed to his groin area and asked her if she would like to apply some there. While the respondent contended that the claimant offered to assist him , he denied the claimant’s comments or that there was anything sexual or inappropriate about his conduct. It was submitted that the claimant had text messages that would provide evidence of the claimant’s “ form in this regard”. It was submitted that the texts were sexually explicit in nature and that further corroboration of the sexual harassment would be provided by the claimant’s witness Ms.MG.It was submitted that this behaviour was solely related to the claimant’s gender and that such sexual inferences would not have been made to a boy.It was advanced that the attendance by the respondent at the claimant’s apartment in the evenings constituted less favourable treatment , was oppressive but the claimant was afraid to ask the respondent not to come for fear of retaliation.”She was anxious to appease him”.
It was submitted that the claimant was the subject of victimisation under the Act . It was submitted that the respondent caused other staff to contact the claimant expressing their dissatisfaction having heard of the complaints made by her. It was submitted that the respondent advised staff that Revenue and Social Welfare would be taking an interest in the business , that he had to cut their hours and that they could thank the claimant. A text message from Ms.J was submitted as corroboration of this allegation. It was advanced that the text messages would demonstrate that the claimant was on leave from the 3rd.March 2015 .It was submitted that the respondent’s ridiculing of the employee’s medical treatment constituted victimisation , that it was a flagrant breach of trust and confidence in the employment relationship and that this was designed to harass and control and undermine the claimant amongst other staff. The precise detail of the texts exchanged between the claimant and the respondent was presented as evidence of sexual harassment and of the respondent’s knowledge of the claimant’s medical condition and of his attempts to isolate the claimant from other staff. The messages included the following exchanges :
Respondent to Claimant” No nightmares tonight.You can go back to having inappropriate dreams of me”
Claimant to Respondent”..and you told me to f off then too.So I wont be so rude and tell you to f off but I will say Im done with you and I’m working my 8.65 worth and nothing more .There 10-13 staff on €10 per hour and get their a…licked for doing f all.And I mean .F all. Let them do the heavy work and have their nails broke.I’ve enough.
Respondent to Claimant “You are on €9 per hour for the last year.Plus all your benefits , free food , all the sex you can handle.Praise when its due ; dates with toy boys , girls to talk s…. with.What more do you want”
It was submitted that the respondent’s broadcasting and ridiculing of the claimant’s medical condition constituted victimisation under the Act and was a flagrant breach of trust and confidence in the employer/employee relationship. It was contended that it was designed to undermine the claimant and It was submitted that the claimant’s version of events was supported and corroborated by her witness MG.
It was submitted that while the text/what’s app messages may indicate “that it was a two way street , it should be borne in mind – the respondent’s position of power and status within the company”.It was submitted that it was clear that there was a definite sexual inference to the respondent’s communication to the claimant – showing him in a predatory light. It was submitted that there was no system in place for the claimant to make a formal complaint and that the claimant often sought to appease the respondent allowing him further control over her. The provisions of Atkinson v Carthy and others [2005]ELRI were invoked in support of the claimant’s representative’s arguments about the significance of the absence of a proper policy. The claimant invoked EH-v-A Named Company Trading As a Cab Company Dublin DEC-E2006-026 in support of the submission that the maximum remedy should be awarded.It was submitted that having a policy in place is not sufficient as a defence for an employer unless there is clear evidence of the policy having been effectively communicated throughout the organisation and that this was evident from the Equality Officer’s decision in A Worker v Engineering Company DUC-2008-03.
The claimant gave evidence of her exchanges with the respondent and vehemently refuted the finding of the Investigator that she accepted that there were no sexual connotations to the antibiotic cream incident. The claimant and her representative contended that this was never accepted .The claimant clarified that she had accepted that there were no sexual undertones to the respondent’s visits to her apartment in the evening but insisted that the text / whats app exchanges and the application of the antibiotic cream were deeply offensive to her. She took exception to his numerous references to her as a boy because of her flat chest and thin stature.
The claimant’s witness MG gave compelling and credible evidence of the respondent ‘s remarks that the claimant looked like a boy and had no tits anymore .She recalled being asked by the respondent if she was on medication like the claimant.She submitted that this evidence was relayed to the Investigator in her interview with him and when she learned from the claimant that the Investigator found no corroboration of the claimant’s allegations , she clarified her recollection of the meeting in a written statement.
Ms.PB in her direct evidence corroborated the references by the respondent to the claimant’s thin figure and flat chest.The witness stated that she volunteered to meet with the Investigator but he declined and interviewed her by phone for approx. 80 minutes during the course of which she cried on a number of occasions.
Summary of Respondent’s Position
It was submitted that the complaints under the Employment Equality Acts had been fully investigated by the investigator and were not upheld.
It was submitted that no evidence had been advanced to support an allegation of victimisation.
It was submitted that the claimant had failed to provide any substantive evidence to support the allegation of discrimination on the grounds of gender.
It was submitted that it was notable that when the claimant’s representative first corresponded with the respondent , there was no reference to allegations of discrimination on the grounds of gender and in relation to conditions of employment and or victimisation.
It was submitted that it was notable that the claimant did not inform her employer of any of the foregoing allegations while in the employment.
It was submitted that the report of Dr.JL was not available to Mr.McP when he carried out his investigation – the report was challenged on the basis that the conclusions were reached on the basis of the claimant’s version of events only and the allegations of bullying and harassment were vehemently denied. It was submitted that the doctor’s conclusions made no reference to the very serious allegations of sexual harassment.iThe respondent challenged the entirety of the report and it was asserted that the claimant at no stage advised her employer that she had a medical problem. The respondent sought the withdrawal of numerous paragraphs contained in the doctors report.It was submitted that while Dr.L acknowledged that conclusions were formed without being privy to the alleged perpetrator’s version of events , the doctor had failed to indicate if she had read Mr.McP’s report.The respondent reiterated the conclusions of the McP report which did not uphold the complaints of sexual harassment ,harassment or bullying. It was further found by Mr.McP that the allegations of harassment did not constitute harassment as outlined in the Act.The respondent questioned why the claimant had never brought the alleged behaviours to the attention of the respondent’s wife – with whom she had a close relationship or her colleague employees.It was submitted that it was notable that the claimant who was well aware of her legal rights had not contacted the Gardai to report her complaints of harassment.
It was asserted that the claimant was asked by the Investigator to furnish him with a copy of the text/what’s app messages but did not do so prior to the completion of the report.It was contended that the messages presented are select messages provided by the claimant , that if she did not wish the respondent to text her she could have brought that to his attention or use the blocking facility.It was submitted that “ it is notable that the issue of Text Messages was not included in the original letter of the 10th.April 2015”.
The respondent’s Insurance Broker gave evidence in relation to the appointment of the investigator Mr.McP – he said he was contacted by the respondent and he recommended 2-3 people from a panel of Investigators on their books. He stated that it was a matter for the respondent to decide who to select and that this was the extent of his involvement.
Evidence was given by the respondent’s witness Ms.RD that she had no difficulty with the respondent and had never witnessed any harassment of the claimant or inappropriate behaviour towards her. She indicated that the claimant had said to her that she was texting the respondent to annoy him.
Ms.E S gave evidence of having had a good experience while in the employment of the respondent – she stated that she never witnessed any inappropriate behaviour by the respondent towards the claimant.
Ms.ML gave evidence of never having witnessed any inappropriate behaviour towards s the claimant – she had a dispute with the claimant and asked not to be rostered with her again.Thereafter she worked on a different shift to the claimant.
Ms.CM described the working environment as comfortable with a good atmosphere and stated that she never witnessed any inappropriate behaviour towards the claimant.She knew of the claimant’s mental health problems and had briefly spoken with her about them.
Ms.LM and Ms.MK also gave evidence of not having witnessed in appropriate behaviour towards the claimant – neither witness had worked with the claimant.
Ms.A S gave evidence of enjoying a brilliant job with the respondent and described the working environment as good craic and supportive.She did not witness any inappropriate behaviour and was aware of the contents of the staff handbook.
Ms.SBr and Ms.SBe gave evidence of enjoying the working environment and never having witnessed any inappropriate behaviour towards the claimant.
The investigator was required to attend to give evidence at the hearing on the 2nd.April 2017 in light of the very significant conflict between his conclusions and the evidence of the claimant’s witnesses.
Mr.McP was asked why he had not given the claimant sight of the evidence of the witnesses called by the respondent and he responded that he could not do so as the notes were private and confidential .He was asked to furnish the Commission and the claimant’s representative with the notes taken in the course of the investigation. He asserted there was no requirement under the terms of reference to issue a draft report and that this would have led to inordinate delays .When asked about the methodology used by him in the investigation , he replied no comment. He stated the main reason he had not distributed the witness statements was because of confidentiality. When asked about the conflict between the evidence of the claimant’s witnesses Ms.PB and Ms.MG and his conclusions he stated that they had been unable to furnish dates times and instances of harassment. He stated that the claimant’s representative had offered no comment on his involvement with NERA during the course of the investigation .The investigator was unsure about the chronology of the interviews with the parties and the witnesses or the number of parties interviewed. He surmised that he had 8 face to face interviews and 6 interviews over the phone. When asked how he established the credibility of evidence over the phone – he was unable to comment. The investigator stated that he took all of the evidence into account in arriving at his conclusions – he stated that there were inaccuracies in the claimant’s account of events , that they did nt stack up and specifically referenced the date of the claimant’s last day at work. The investigator stated that he asked the claimant’s representative to furnish him with copies of the text and what’s app messages but he had failed to do so.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The claimant’s complaint was received on the 5th.November 2015.Her representative was requested by the WRC to specify the date of occurrence of the most recent incidence of alleged sexual harassment.In his reply dated the 26th.February 2018 he referred to a text message of the 14th.January 2015 –it was asserted that the respondent texts the claimant “ But that’s half the fun .Winding you up….Now you can dream of some other stuff you want to do to me”.He goes on to refer to an instruction from his client that the claimant was subject to leering stares from the respondent as he drove past her apartment and that this behaviour continued to the 11th.March 2016.In response Mr.McP asserts that that by virtue of the location of her apartment it was not possible for the claimant to observe any vehicles from her apartment. He also questions the introduction of this complaint as it had never been raised previously.
I have considered the submissions of both parties in relation to the allegation of leering – this is a fresh complaint made post the lodging of the complaint with the WRC and accordingly cannot now be entertained.
I have considered the respective positions of the parties and find that the date of occurrence of the last incidence of alleged sexual haarrassment to be the 14th.January 2015 – the date of the text message referred to in the preceding paragraphs. When questioned about the delay in making the complaint , the complainant stated that she was in fear of loosing her job – her representative also submitted that the respondent’s solicitor was tardy in furnishing information and in proposing the appointment of MR.McP to undertake an investigation into the claimant’s complaints.I have considered these submissions and taken account of the date of issue of Mr.McP’s report to the claimant of the 3rd.July 2015 . I have also taken into account the delay in the response of the respondent’s representative to the claimant’s challenges of July 2015 to the Investigator’s report .A response was not forthcoming until October 2015.In all of the circumstances I have concluded that there was reasonable cause for the delay in making the complaint and consequently I deem the complaint to be in time.
I have considered the request by the claimant’s representative that the report of the Investigator Mr.McP be set aside on the grounds that it was biased and contained fundamental procedural flaws.
I accept the contention of the claimant’s representative that the intervention by the Investigator with Nera during the course of his investigation was inappropriate and find that such an intervention on behalf of one of the parties to the dispute he was investigating was entirely inappropriate and compromised the investigation from the outset .I note the claimant’s representative’s contention that they did not object at the time as they were awaiting the outcome of the investigation. Mr.McP was unable to clarify the methodology used by him in his investigation and offered no comment when questioned about how he assessed the credibility of witnesses through telephone interviews. .When asked about the conflict between the evidence of the claimant’s witnesses Ms.PB and Ms.MG and his conclusions he stated that they had been unable to furnish dates times and instances of harassment. It is notable that this was not documented in the final report and rather than comment on the evidence submitted by these witnesses , they were dismissed entirely by the Investigator. It is acknowledged in the respondent’s submission of April 2017 that the text messages exchanged between the claimant and the respondent were raised in the course of the investigation – Mr.McP insists that he requested the claimant to forward them to him and she failed to do so. The claimant’s representative asserted that he presented the text messages to the Investigator and he dismissed them and at no stage invited the claimant to forward the texts. .I note that the Investigator makes no reference in his report either to the presentation of the text messages or any request for them to be submitted prior to the conclusion of the investigation.
One of the instances of alleged sexual harassment made by the claimant related to the application of antibiotic cream to the respondent’s shoulder and the alleged ensuing vulgar comments. The finding of Mr.McP was as follows :
“In my professional opinion the incident relating to the application of the antibiotic cream is inappropriate in respect of a normal working environment.
While some details surrounding the event are in dispute , what is not in dispute is that both parties viewed the act of applying the cream as being an act of assistance rather than be sexually motivated…”
This assertion was categorically denied by the claimant and her representative who insisted that this incident constituted an act of sexual harassment and asserted that they never conceded otherwise. In light of the fact that the claimant complained of this incident as one of sexual harassment and that she was legally represented during this investigation, I don’t find the respondent’s assertion that it was accepted by both parties that this was an act of assistance without sexual connotations , to be credible.
Mr.McP’s report continues as follows :
“Both parties agree that the respondent advised the claimant to wear gloves prior to applying the antibiotic cream. This in my opinion underpins the view that the application of the cream was by way of assistance and not of a sexual nature .In order for the behaviour to constitute Sexual Harassment it must first and foremost unwelcome from the employee. I believe it is reasonable to assume that if the complainant did not wish to apply the antibiotic cream to the shoulder of the respondent she would have said so prior to the event. There is no evidence to show that the claimant was intimidated , forced and /or coerced by the respondent to apply the antibiotic cream to his shoulder”
Given all of the foregoing circumstances , I find that the investigation was compromised and flawed and should be set aside .
The issues for decision by me is whether the respondent (i) sexually harassed the complainant contrary to section 14A of the Employment Equality Acts, 1998 . In reaching my decision I have taken into consideration all submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearings. Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was sexually harassed and discriminated against on the gender ground in relation to her conditions of employment. It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
Section 14A of the Acts defines sexual harassment as:
“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct 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.”
The Act goes on to give examples of unwanted conduct and states: (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
The Labour Court in the case of Nail Zone Ltd and A Worker Determination No. EDA1023, defined the law in relation to harassment as follows:
“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.”
I found the claimant’s evidence of sexual harassment to be credible and compelling and I accept that this is corroborated by the unchallenged text messages exchanged between the claimant and the respondent.I found the evidence of the claimant’s witness Ms.MG in relation to the respondent describing the claimant looking like a boy and having no tits to be compelling and credible. Additionally, I found the evidence of MsPB about witnessing the claimant being described by the respondent as flat chested and thin to be persuasive. In light of the foregoing and the absence of direct evidence from the respondent I am satisfied that the complainant has established a prima facie case of sexual harassment contrary to section 14A of the Employment Equality Acts.
I am not satisfied that the respondent has rebutted the prima facie case of sexual harassment established by the complainant. I note that Section 14A(2) of the Employment Equality Acts, 1998 provides a statutory defence for the respondent in cases of sexual harassment. “If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.”
The respondent has been unable to present any evidence of having anti-harassment /anti sexual harassment policies in place at the time at issue.
Consequently I am upholding the complaint of sexual harassment and require the respondent to pay the claimant €17,450 compensation within 42 days of the date of this decision.
Dated: 13/04/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea