ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006961
Sean Ormonde Sean Ormonde & Co. Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 03/11/2017
Workplace Relations Commission Adjudication Officer: Michael Ramsey, BL
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant is seeking adjudication by the Workplace Relations Commission under section 77 of the Employer Equality Act 1998 and has submitted she was discriminated against by her employer by reason of her gender and further treated her unlawfully by discriminating against her by harassing her.
The Complainant is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 in that she did not receive a statement in writing on my terms of employment.
Summary of Complainant’s Case:
The Complainant was employed as an OTC assistant from 11th December 2006 with the Respondent Company and was paid €245.28 (gross) per week and work approximately 24 hours per week.
In the circumstances of this case, the event that precipitated this matter occurred on the 14th November 2016. On this date, the Respondent made an expletive laden remark in relation to the Complainant’s makeup whilst a customer was present. These comments were repeated to the other members of staff when the aforementioned customer left. The Respondent continued to make similar remarks and the Complainant felt humiliated and embarrassed and proceeded to the back of the dispensary to retrieve her keys which she then threw in front of the Respondent and intimated to the Respondent that she did not appreciate the manner in which she had been addressed and he could get her P45 ready.
The Complainant explained she was not prepared to remove her make-up as she was wearing same to conceal a breakout of dermatitis and erythema of which she had suffered for a long time. The Complainant indicated that the Respondent followed her to the car park. The interaction between the parties continued and ultimately following further heated exchanges the Complainant left the premises and drove to her husband’s place of work.
The Complainant further explained that, because of her skin condition, she had worn this type of make-up previously to her employment and the Respondent had not made any similar remarks in relation to her makeup. The Complainant indicated she did not believe she did anything to warrant such a humiliating and personal attack.
The Complainant gave evidence of a further personal attack on her, as she perceived it, in February 2010. In that respect the Complainant wrote a letter dated the 24th February 2010 in which she detailed the incident of concern wherein she felt totally humiliated and embarrassed and did not believe she should be treated in the workplace in such a manner.
The Complainant indicated that indicated that the workforce consisted of a number of employees who were predominantly female and the only other male employee was another pharmacist. The Complainant contended whereas other female employees were verbally abused and humiliated by the Respondent, he did not afford the same type of behaviour to any male employees.
Ultimately, following the incident on the 14th November 2016, the Complainant was certified by her general practitioner as unfit for work due to work related stress. The Complainant has not returned to this employment and believes this whole episode has caused a loss of self esteem and confidence.
In an undated letter, the Complainant forwarded a letter to the Workplace Relations Commission enclosing her correspondence with the Respondent (outlined below). The Complainant indicated she had not received a copy of the employee handbook. The Complainant enclosed a photograph of the makeup she was wearing on the day of the 14th November 2016 and a copy of an earlier incident referred to by letter of the 24th February 2010.
It was submitted on behalf of the Complainant that she was seeking redress for discrimination on the grounds of gender and the manner in which she was treated constitutes direct and/or indirect discrimination as well as harassment. Accordingly, in light of such treatment the Complainant was entitled to resign having been constructively dismissed.
It was submitted on behalf of the Complainant that she has a right to be treated with dignity in the workplace and believes the behaviour of the Respondent on the day in question, and on a previous occasion, to the Complainant and to other employees was that of a domineering bully.
It was submitted on behalf of the Complainant that the remarks made by the Respondent were clearly inappropriate and caused significant distress and offence and she was not prepared to continue to work with the Respondent under such conditions.
In conclusion, it was submitted that in light of the discrimination suffered by the Complainant it was entirely reasonable for her to resign her employment as such a resignation, in the circumstances, was a constructive dismissal and seeks compensation in respect of same.
Further, it was submitted that the Complainant never received a copy of the terms and conditions of her employment in writing and never received a company handbook either and seeks compensation not exceeding four weeks pay.
Summary of Respondent’s Case:
Following the incident on the 14th November 2016, the impetus for the hearing of this matter, the Respondent responded to the complaint of the Complainant.
In the course of this correspondence dated the 7th December 2016, the Respondent acknowledged that his manner was “brusque on the day” and apologised for being short. He realized he should have taken the Complainant aside, in private, and pointed out that in his opinion the makeup was inappropriate and unusually striking for the workplace. Ultimately, the Respondent apologised for not making his remarks in a more professional manner and accepted that his intention was not to humiliate the Complainant but accepted his behaviour inevitably had that effect.
On the 11th January 2017, the Respondent noted the Complainant had not responded to his previous letter and that he continued to receive sick notes on her behalf. Further, the Respondent inquired if the Complainant still required her P45 by post.
In an undated letter received by the Respondent on the 25th January 2017, the Complainant responded, on the 27th January 2017, that she found his reply unsatisfactory and suggested this matter could be resolved by way of redundancy and was anxious to resolve this “awful situation” as amicably and discreetly as possible and move on.
The Respondent, in the course of this correspondence, sought further clarification if she still required her P45 posted and further indicated that a redundancy package, as previously suggested, was not appropriate as the position was not made redundant and has been advertised widely and the company could not afford such an outlay.
The Respondent enclosed a copy of the Complainants contract of employment which had been signed on the 18th October 2012 and noted that such contracts had been issued to all employees. The Respondent indicated that the Complainants assertion of a breach of employment law are spurious and opportunistic. However, the Respondent concluded he looked forward to an amicable resolution of this situation.
On the 31st January 2017, the Complainant responded to the previous letter. The Complainant denied she had received a copy of her employment contract or the employee handbook as mentioned in said contract.
In the course of the Respondents evidence, he accepted his behaviour was inappropriate, unprofessional and apologised for same. The Respondent further indicated he regarded the discussions with the Complainant as merely “banter” and that the Complainant “could give as good as she got”.
The Respondent, in the course of his evidence accepted that the Complainant did did not receive a statement in writing of her terms of employment.
The Complainant was afforded the opportunity to resolve this matter prior to the hearing of this matter and at the conclusion of the evidence but did not avail of such an opportunity.
Findings and Conclusions:
The Employment Equality Acts (hereinafter referred to as the EEA’s) outlaw discriminatory treatment on any of the nine prohibited grounds covering not only existing employment relationships but also the termination of those relationships and even the treatment of a former employee. There is no requirement for any minimum period of service to be cloaked with the protection of the Acts and therefore job applicants are protected from discrimination, harassment and victimization.
The Acts provide strong protection for the employee defined as someone who works or has worked under a contract of employment including where the context admits, a member or former member of a regulatory body (Section 2 (1))
Section 6 (1) states that Discrimination
“shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) which
(ii) existed but no longer exists;
(iii) may exist in the future, or
(iv) is imputed to the person concerned”
The discriminatory grounds are set out in Section 6 (2) and compromise what are now commonly referred to as the nine discriminatory grounds.
Section 14A (7)(a) of the Acts defines harassment 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.
The Code of Practice on Sexual Harassment and Harassment at Work (SI 208/2012) states the following in relation to harassment
“Many forms of behaviour can constitute sexual harassment. It includes examples like those contained in the following list although it must be emphasised that the list is illustrative rather than exhaustive. A single incident may constitute sexual harassment”
In relation to violation of dignity “In addition, to constitute sexual harassment or harassment under the Employment Equality Act the behaviour must have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.”
In relation to Intention “The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the employee is no defence. The effect of the behaviour on the employee is what is relevant.”
Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that If the complainant does not discharge the initial probative burden required her case cannot succeed.
In consideration of this smatter, I am conscious of the decisions of the Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited  16 E.L.R. 282 confirmed the English position that discrimination can be conscious or sub-conscious and can therefore be difficult to prove.
“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”
Further, in the circumstances of this case I have regard to the Workplace Relations Commissions Code of Practice on Bullying in the Workplace.
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
The issue of harassment or bullying in the workplace can be considered within the context of constructive dismissal. In a case claiming constructive dismissal the onus is on the claimant to prove her case. The test for the claimant is whether it was reasonable for her to terminate her employment following principles enunciated in Allen –v- Independent Newspapers (Ireland) Limited 2008 ELR 1.
Further, Fennelly J in Quigley v Complex Tooling and Moulding Limited 2009 1 IR 349 adopted this definition of workplace bullying and went on to clarify what the behaviour had to be in order to satisfy the definition: “.. I would accept, that bullying must be repeated, inappropriate and undermining of the dignity of the employee at work.”
In Ruffley v Board of Management St. Annes School 2015 IECA 287Ms Justice Finlay Geoghegan held that the right to dignity must include
“A right to be treated with respect, fairly and not less favourably than other colleagues in a similar position.”
Irvine J. held that the right to dignity in the workplace;
“entitles a person to be treated with reasonable fairness in the eyes of others”.
In Glynn v Minister for Justice Equality and Law Reform and others 2014 IEHC 133, Kearns P set out the test as follows:
“It follows that the first question that must be asked in every bullying case is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress.”
Kearns P went on to apply the Quigley definition as requiring
“this wording must be taken as requiring an objective test to determine if bullying has occurred. The test must, for reasons of common sense also, be an objective one given that any other would leave every Defendant vulnerable to allegations of bullying based on purely subjective perceptions on the part of a Plaintiff who might contend that straight forward situations at work or otherwise were construed by him/her as amounting to bullying.”
The objective analysis required by Kearns P in Glynn, was strongly endorsed by Irvine J in Ruffley in finding that in order to assess behaviour on an objective basis it must be assessed in the context of all of the relevant circumstances. In relation to the type of conduct required Ms. Justice Irvine also held that;
“incidences of inappropriate conduct do not have to be of the same nature or character to constitute bullying. Different types of behaviour when directed to one person may constitute bullying.”
The objective analysis was also endorsed by Finlay Geoghegan J. in Ruffley and was broken down, by reference to the definition, as follows:
“Accordingly, I have concluded that a Court must first assess whether the conduct or behaviour alleged is objectively to be considered as repeated inappropriate behaviour. If so it must then determine objectively whether it is reasonably to be regarded as undermining the individual’s right to dignity at work”.
In Sweeney v The Board of Management of Ballinteer Community SchoolHerbert J. analysed a number of incidences which the Plaintiff relied on in her claim for personal injuries in what she claimed was unlawful bullying and harassment of her by her school principal. Some of the Plaintiff’s complaints were upheld and others were not.
In assessing objectively whether or not each incident amounted to bullying he found that certain actions of the Plaintiff were “utterly indefensible”. He went on to assess each incident sometimes accepting and sometimes rejecting the Plaintiff’s allegations that she had been subjected to unlawful bullying behaviour:
Overall the Court found that the evidence established that the plaintiff was subjected to deliberate and continuous bullying and harassment as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable.
A further example of conduct found by the High Court to constitute actionable bullying arose in the case of Browne v. Minister for Justice, Equality and Law Reform and Commissioner of An Garda Siochana 2012 IEHC 526.
It should also be noted that the Safety, Health and Welfare at Work Act 2005 provides for a limited statutory basis for liability for bullying and harassment. In Sweeney v. BallinteerCommunity College 2011 IEHC 131, Herbert J expressly relied on the provisions of the Act in locating an employer’s legal duty to provide a workplace free from bullying, which he found on the facts had been breached.
Section 8 of the Act sets out the wide ranging duties owed by an employer to their employee. Amongst the most significant provisions in relation to workplace bullying is that set out in Section 8(2)(b) which extends an employer’s duties to:
“managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk”.
It is well settled in Irish jurisprudence, as set out by Clarke J in Maher v Jabil 2005 ELR 233 and approved by the Court of Appeal in Ruffley v Board of Management St. Annes School that liability for workplace bullying depends upon the proof of three inter related requirements: Has the Plaintiff suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress; If so, is that injury attributable to the workplace; and if so, was the harm suffered to the employee concerned reasonable foreseeable in all the circumstances.
In the circumstances of this matter and upon the consideration of the oral evidence, I accept that the Complainant has proven the primary facts upon which she relies in seeking to raise an inference of discrimination and I am further satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination.
Further, in the circumstances of this matter and upon consideration of the admissions made by the Respondent, the definition of harassment and bullying, the relevant case law above I have come to the conclusion that the Complainant has established the definition of harassment and bullying. In particular, on balance of the evidence adduced the alleged harassment/bullying can be regarded as repeated, inappropriate and undermining of the dignity of the employee.
In relation to the Complaint (CA-00009438-001) the Complainant has established a prima facia case of discrimination on the grounds of gender and harassment. It is noteworthy, the Respondent provided no reasons that could objectively justify why the complainant was treated in such a manner and he has not succeeded in demonstrating there was no infringement of the principle of equal treatment.
In all of the circumstances, I deem it just and equitable, to award the Complainant the sum of €8,000.00
In relation to the Complaint (CA-00009438-002) the Complainant complains that she was never furnished with the statement of the terms of her employment. Section 3(1) of the Terms of Employment (Information) Act 1994 provides that an employer shall, not later than two months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the terms of the employee’s employment and lists the required terms to be set out.
I am satisfied that the Complainant’s evidence was wholly credible in this respect and in consideration of the Respondents concessions I find this complaint to be well founded.
Having regard to all the circumstances, I deem it just and equitable, to order the Respondent to pay the Complainant compensation equivalent to the maximum sum of four weeks remuneration. The Complainants weekly gross remuneration was €245.28, this approximates to compensation of €980.00
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 (CA-0009438-001) in accordance with the relevant redress provisions under section 82 of the Act.
For the above stated reasons, I find that the Complainant has established a prima facie case of discrimination and the Respondent should pay the Complainant compensation of €8,000.00 within six weeks of the date below.
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint (CA-00009438-002) in accordance with the relevant redress provisions of that Act.
I find that this complaint is well founded and the Respondent should pay the Complainant compensation of €980.00 within six weeks of the date below.
Dated: 20th September 2018
Workplace Relations Commission Adjudication Officer: Michael Ramsey, BL