ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006543
Stephen Hanaphy BL
Aisling McDevitt, IBEC
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 the Industrial Relations Acts
Date of Adjudication Hearing: 01/05/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 79 of the Employment Equality Acts 1998 – 2015 and Section 13 of the Industrial Relations Act 1969, these complaints were assigned to me by the Director General. A hearing was conducted over two days, on February 9th and May 1st 2018 at which the parties had an opportunity to be heard and to present evidence relevant to the complaints.
The complainant, Ms Stasiak was represented by Mr Stephen Hanaphy BL, instructed on February 9th by Ms Michelle Synnott and Ms Caroline Brennan of Synnott Lawline. On May 1st, Mr Hanaphy was instructed by Ms Martina Gowran. The respondent, Minver Limited, was represented by Ms Aisling McDevitt of IBEC. The Chief Compliance Officer, the Operations Director, an Operations Manager, a Kitchen Manager and a Supervisor also attended and gave evidence for the respondent.
As this is a decision under the Employment Equality Act 1998, the names of the parties are not anonymised. However, for convenience, Ms Stasiak will be referred to as “the complainant” and Minver Limited will be referred to as “the respondent.” To protect the identities of employees who gave evidence, they will be referred to as follows:
The Chief Compliance Officer (CO)
The Operations Director (OD)
The Operations Manager (OM)
The Kitchen Manager (Felix)
The Supervisor (Paula)
On the first day of the hearing, Mr Hanaphy, for the complainant, stated that this was a claim of harassment on the ground of gender, and of discriminatory dismissal. The complaint under the Industrial Relations Act was withdrawn.
The complainant is a Polish national and she commenced work as a kitchen assistant on December 13th 2015. She worked for 32 hours per week and she was paid €9.00 per hour. She left her job 10 months later on October 18th 2016 due to what she alleges was harassment and sexual harassment. Her complaint is that she suffered from discrimination on the ground of gender and the conduct of her employer was such as to cause a fundamental breach of her contract of employment.
The respondent disputed the allegation of harassment and sexual harassment and their position is that the complainant resigned voluntarily. Before she left her job, the respondent said that the complainant made no effort to have her grievance dealt with by using the company’s internal grievance procedures.
Summary of Complainant’s Case:
At the commencement of her employment in December 2015, the complainant received a contract which specified that she was employed in the position of “Back of House Starter.” She understood this to mean that her job involved the preparation of starters. A new manager joined the kitchen in January 2016, a Chinese person, (“Felix”). The complainant said that Felix asked her to do other work, such as washing dishes and general cleaning. The complainant said that she asked for protective gloves, but these were not provided. She also said that Felix and her co-workers belittled her for doing the cleaning duties, ridiculed her because she is a woman and claimed that her work was unsatisfactory.
The complainant said that one of her colleagues, a Romanian national, (“Joe”), regularly demeaned her by suggesting that she wasn’t capable of assisting the chefs. She alleged that he threw food into hot oil which splashed out and burned her arms.
In February 2016, the complainant said that she told a female colleague that she intended to travel to Poland for fertility treatment. She said that this colleague told others in the workplace about the purpose of her trip and the complainant said that her male colleagues then made inappropriate, degrading and humiliating remarks to her.
In March 2016, the complainant said that a colleague, (“Ivan”), made unsolicited requests to her, telling her she was “sexy” and that he needed her. The following month, she said that Ivan made sexual noises in her direction, making her extremely uncomfortable. When she was in the kitchen with Ivan, the complainant said that he made gestures imitating sexual activity. He also “coerced” her to clean out a waste container that she said contained sewage. In cross-examination, the complainant agreed that this container was used to hold grease from the kitchen’s grease trap and that it did not contain sewage.
In the workplace, there was just one toilet and it was used by all the staff. It appears that the lock on the door was broken and in May, the complainant said she was interrupted by Ivan when she was using the toilet. On other occasions, when she was using the toilet, the lock became jammed and she had to call for assistance to get out. The complainant said that this was embarrassing and caused laughter among the male staff.
The complainant said that the Felix and another colleague commented on her eating habits and called her “fat.” She said that these comments were degrading and violated her sense of dignity.
As the months of 2016 went on, the complainant said that a group of male colleagues appeared to act “in concert” and she suffered further incidents of harassment and sexual harassment. In June, the complainant said that she complained to Felix about the behaviour of two of her colleagues but Felix responding by engaging in insulting conduct himself, by gesturing to his chest.
Joe left the respondent’s employment in August 2016; however, the complainant said that she continued to be subjected to degrading treatment by other staff until she left in October.
In February 2016, the complainant said that she complained to her supervisor, (“Paula”) about the behaviour of Joe, who had shouted expletives at her and criticised her work. The complainant said that Paula “simply shrugged her shoulders.” In April, when she complained again, this time about her treatment by Ivan and Joe, she claims that Paula said that it was not her responsibility to intervene in conduct in the kitchen. In June 2016, the complainant said that Paula gave the same response when she made further complaints about the behaviour of her colleagues. The complainant’s case is that her supervisor refused to deal with her grievances.
Discrimination: Harassment and Sexual Harassment
The complainant’s position is that the burden on proof imposed on her by section 85A of the Employment Equality Act 1998, to establish facts from which it may be presumed that discrimination has occurred, has been discharged. In support of this argument, the complainant’s submission referred to the cases of An Office Worker v A Security Company, DEC E2010-002 and A Worker V A Hotel,  21, ELR 72. In both cases, the Equality Officer and the Labour Court respectively found in favour of the complainants who had claimed that they were subjected to sexual harassment over the course of their employment.
In another case, that of BH v a Named Company Trading as a Cab Company, DEC-E2006, 026, the Director of Equality Investigations awarded the maximum compensation for conduct that created a hostile working environment for the female complainant on the ground of her gender.
In relation to the inability or refusal of Paula to deal with the complainant’s complaints, her counsel referred to the decision of the Equality Officer in the case of Ms A v A Gym, DEC, E2004, 011 where the Equality Officer found that the sexually suggestive comments and inappropriate behaviour of a co-worker of the complainant constituted discrimination for which the employer was vicariously liable.
In her submission, the complainant said that, on several occasions, she complained to her supervisor and to the kitchen manager, but she was so frustrated with their refusal to deal with her complaints that she had to resign. She submitted her resignation by e mail to the Operations Director (“OD”), on October 18th 2016. In response, he wrote:
“I understand from Felix that you have found another job and have resigned from the store, I would like to wish you the best in your new position. However, should you feel it would be of benefit, I would be happy to meet you in the coming days.”
No meeting took place between the complainant and OD.
The complainant referred to the “contract test” and the “reasonableness test” which determine that a complaint of constructive dismissal can be upheld. The complainant argues that her contract of employment was breached when the respondent tolerated the harassment and sexual harassment of her by its employees. Also, by requiring her to work in conditions that were so unreasonable, the complainant was justified in resigning.
In her submission, the complainant anticipated that the respondent might argue that she has acted unreasonably by not exhausting the grievance procedures to deal with the conduct that resulted in her resignation. In the first instance, she argued that she is a Polish national and her job with the respondent was her first job in Ireland since she moved from her home country. Secondly, the complainant complained to her supervisor several times about her problems at work. Finally, the respondent’s policies were not clearly explained to the complainant, whose first language was not English.
The complainant submitted that her failure to exhaust the grievance procedures does not mean that she acted unreasonably. She referred to the case of Porter v Atlantic Homecare Ltd,  ELR 95, where the complainant in this case was subjected to name-calling and accusations of theft. In this case, the complainant’s failure to exhaust the grievance procedures were excused because the existing problems at work made her afraid of availing of such procedures.
The facts of the case of A Worker v a Hotel, DEC E-2009-062 were referred to where the Equality Officer found in favour of a complainant who alleged that she was subjected to sexual harassment by a customer of the respondent. Here, the Equality Officer found that the respondent’s actions following the complaint of sexual harassment were such that they “aggravated the complainant’s feelings of intimidation and distress...”
The complainant submitted that, during 2016, she suffered from discrimination in the form of harassment and sexual harassment by her colleagues. Although she said that she complained to two members of management and, despite making the respondent aware of the treatment that she was subjected to, no action was taken to deal with her situation.
It is the complainant’s case that the discrimination that she suffered was in breach of her statutory and contractual rights and that she was forced to resign. In so doing, it was argued that she acted entirely reasonably, having regard to the circumstances that she worked in for approximately nine months.
Summary of Respondent’s Case:
On Sunday, October 16th 2016, the complainant wrote to OD and asked him to pass her e mail to the human resources department. In her mail, she complained about the behaviour of her colleagues and she concluded by saying, “I don’t want to work in (name of the) restaurant with this people, never more!”
The following day, OD wrote to the complainant and said that he was sorry to hear that she was unhappy and that he was unaware of this and “would of (sic) liked the opportunity to meet with you to discuss your concerns in more detail.” He said that he would be happy to meet the complainant in the coming days. Due to commitments on both sides, OD did not meet the complainant and another manager, (“OM”) wrote to the complainant to arrange to meet her. A meeting was arranged for October 24th, but the complainant cancelled this appointment saying, “this week is not really suitable for me at all.” She said she would contact OM to arrange another time, but she did not contact any member of the management team after this e mail.
The complainant alleges that her employer had no policies or procedures in place to protect her from the behaviour she complained about. The respondent’s Dignity at Work policy was submitted in evidence. A one-page document showing that the complainant received a copy of the Dignity at Work policy was also submitted. On December 13th 2015, which was her first day at work, the complainant signed underneath the following statement:
“This is to confirm that I, the undersigned, have read the company Dignity at Work Policy and I understand that I must treat all fellow team-members with dignity and respect in the workplace and at any work-related event on or off the premises. I realise that failure to comply with this policy could result in disciplinary proceedings being taken against me.”
For the respondent, Ms McDevitt said that the existence of this policy demonstrates that the employer had in place a policy to prevent any employee acting in the manner described by the complainant. Joe, who the complainant alleges harassed her, signed that he received and understood this document and evidence of this was presented at the hearing.
The company’s disciplinary procedure was also submitted in evidence. Page 4 contains a list of the types of behaviour that constitute gross misconduct. The list includes:
“Threatening or abusive behaviour; aggression or violence towards people or property.
“Verbal abuse, intimidation or any form of harassment.
The company’s attitude to this type of behaviour is reiterated in the complainant’s contract which contains the statement that “verbal abuse, intimidation or any form of harassment, threatening or abusive behaviour will not be tolerated under any circumstances and will be regarded as gross misconduct.”
The respondent’s position is that it is “astounding,” that, having received and signed these documents, the complainant is alleging that she is unaware of their existence.
In their submission at the hearing, the respondent notes that the complainant said that four of the complainant’s colleagues harassed her, Joe, Ivan, “Adam” and Felix . Like the complainant, the operations manager, OM is from Poland. In his evidence at the hearing, OM said that he was surprised to hear that the complainant had been harassed. He said in conversations with the complainant, when he asked her how she was getting on, she said that Joe had been shouting at her. OM said that Joe tends to speak loudly to everyone and, in this regard, the complainant was not singled out for particular treatment. OM asked Joe to lower his voice and when he subsequently visited the unit where the complainant worked, he observed that the problem appeared to have been resolved, and this was also confirmed by the complainant. In the absence of a further statement, or any indication from the complainant that she wished to make a formal complaint, it was reasonable for OM to conclude that this problem of Joe shouting had been informally resolved.
As OM and the complainant speak Polish, it would have been reasonable for her to report to him anything that bothered her. He said that he never noticed any behaviour in the unit that indicated to him that the Dignity at Work policy was not being observed. OM said, “I always talk with people on visits to the stores and encourage them to speak if they have any problems or if there is anything I can help with. It was the same with Joanna and she never raised any of the claimed issues other than above.”
OM’s boss, OD, is the operations director and in July 2016, the complainant contacted him when she was looking for a copy of a training certificate in respect of a course that she did on food hygiene. While she contacted OD about this matter three times, she did not raise any concerns about harassment.
In relation to the allegations against Adam and Ivan, Ms McDevitt pointed to the fact that the complainant alleged that these two colleagues harassed her in May 2016 at the latest. The complainant resigned in October 2016 and she submitted her complaint to the WRC in December 2016. Therefore, Ms McDevitt argued that these complaints are outside the six-month time limit for submitting a complaint. Without prejudice to this argument, the respondent’s case is that its managers did not witness any harassment or any of the behaviour that the complainant alleged that Adam and Ivan engaged in.
In relation to the complainant’s allegations against the kitchen manager Felix, Ms McDevitt pointed to the fact that no complaint about Felix was lodged with the company, nor did any other person observe unacceptable behaviour on his part. The respondent’s case is that if the complainant had made a complaint about Felix – or any other colleague – it would have been taken seriously. The procedure provides that a complaint may be made to the operations director or the operations manager, both of whom were known to the complainant, and one of whom, OM, is a Polish national who could communicate with the complainant in her own language. Ms McDevitt said that the respondent is at a loss to know why, given the fact that the complainant told OM that Joe had shouted at her, she didn’t tell him about the alleged harassment.
The respondent’s submission has a copy of a policy with the heading, “Open Door Policy.” Ms McDevitt said that this is posted on the notice board beside the dry goods store at the unit where the complainant worked. A photo of the location of the notice was submitted in evidence. The policy states:
“You have a right, as an employee of (name of the) restaurants, to make suggestions or ask questions of anyone, at any time, about anything, and receive an explanation and answer. You also have a responsibility to respond quickly and clearly to questions asked of you, to ensure clarity and understanding throughout our company.
“You are encouraged to take full advantage of this right. When you have a question or concern, your Store Managers / Supervisors / Kitchen Managers are in the best position to respond quickly and accurately. If you want further clarification, speak with ANY of our management team, regardless of title.
“Please feel free to e mail OD@xxxx.ie should you not receive an appropriate response from your store management team.”
On three occasions in July 2016, the complainant sent an e mail to OD, as she was looking for a copy of her hygiene training certificate. Some of her complaints against her colleagues pre-date July 2016; however, she did not raise her concerns about this alleged behaviour with OD. Ms McDevitt said that the complainant waited until October 2016, when Joe, who she describes as the person who “started and maintained bullying against me” had already left the company and months after the incidents which she alleges involved two other colleagues.
Ms McDevitt said that the obligation on an employer is to do what is reasonably practicable to prevent and deal with harassment. An employer cannot be expected to investigate an allegation that has never been raised. In support of this position, she referred to the Labour Court case of A Worker v A Hotel  ELR 72, where the Court assessed the defence available to an employer in response to claims of harassment in the following terms:
“This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees.”
In her complaint form, the complainant alleges that she was “treated less favourably than another is, has been or would be treated in a comparable situation on the grounds of her gender.” She furnished no information with respect to this allegation of less favourable treatment, apart from an allegation of harassment. The respondent’s case, in the absence of any detail, is that the complainant was not treated any less favourably than her colleagues in respect of her conditions of employment, nor was there any deviation from the norm in terms of the jobs assigned to her. On this basis, the respondent’s case is that no discrimination took place.
The Company’s Position on Constructive Dismissal
Ms McDevitt referred to the definition of dismissal at section 1 of the Unfair Dismissals Act 1977 – 2015 and the burden of proof which is on an employee in circumstances where he or she terminates their contract of employment. This places the onus on an employee to show that they were entitled to terminate the contract due to a breach of contract by the employer (the contract test), or, that the employer acted so unreasonably that continuation of employment would have been intolerable and it was reasonable for the employee to resign (the reasonableness test).
The Contractual Test
It is the respondent’s case that they operated at all times in line with the complainant’s contract of employment. Ms McDevitt referred to the contractual test for constructive dismissal which is set out in the case of Conway v Ulster Bank, UD474/1981. Like the employer in this seminal case, the respondent did not violate any term of the contract or the company’s policies and did not demonstrate “that the respondent no longer intended to be bound by the contract.” The respondent’s case is that if the complainant had utilised the company’s policies, her complaints would have been investigated in line with procedures.
The Reasonableness Test
In respect of reasonableness, the respondent’s case is that two factors must be considered:
Did the employer act so unreasonably so as the make the employment relationship intolerable?
Did the employee act reasonably by resigning, particularly in the way she used the grievance procedures?
In McCormack v Dunnes Stores, UD 1521/2008, the Chairman of the Employment Appeals Tribunal (EAT) stated:
“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with this particular employer intolerable.”
The respondent’s position is that it acted reasonably and fairly in respect of this employee. It has clear policies in place for dealing with complaints of harassment, sexual harassment and bullying, set out in the Dignity at Work policy. It also has an Operations Handbook, which refers to the Dignity at Work policy, the disciplinary policy and the safety procedures, which the claimant signed to indicate her understanding.
When the operations director received the complainant’s e mail in which she explained her reasons for resigning, he invited her to meet him to discuss what happened. The complainant did not follow up on this offer. In an e mail to the operations manager on October 24th 2016, she cancelled their appointment and said, “I am sorry for the inconvenience caused. I will contact you towards the end of next week to arrange another time.” She did not make any further contact with the company. It is the respondent’s case that all these factors combine to show that the company acted reasonably in its dealings with the complainant and it was not reasonable for her to resign and to claim that her resignation was a dismissal.
Using the Company’s Procedures
The complainant did not use the company’s procedures to have her complaint dealt with and, on this basis, the respondent’s position is that her resignation was unreasonable. When she complained about Joe shouting at her, this was resolved, and she made no further allegation about harassment. The respondent referred to the EAT case of McKenna v Omada, US 832/2005, where the chairman concluded that,
“The claimant did have a grievance in this respect. However, he never made a formal complaint…Having chosen the informal over the formal route, he ought nonetheless to have made the Respondent aware that his complaints were sufficiently serious as to warrant resignation.”
It is the respondent’s case that the complainant did not act reasonably by resigning, as she had not “substantially utilised the grievance procedure to attempt to remedy [her] complaints.” (Conway v Ulster Bank).
When the operations director received the complainant’s letter of resignation, he offered to meet her. His manager followed up with an invitation to meet the complainant on a specific date, but the complainant cancelled the meeting and did not arrange another date.
The Company’s Position Regarding Discrimination
The company’s submission refers to section 14A(2) of the Employment Equality Act 1998 – 2015. Here, the Act provides that an employer can show a defence to a claim of discrimination if they can demonstrate that they took steps to prevent harassment or sexual harassment, if they took action to prevent an employee from being treated differently on any of the nine grounds of discrimination, and, if the person was treated differently, if they can show that they made efforts to reverse this treatment. In the case under consideration here, the respondent can show that they acted reasonably by speaking to the employee who the complainant said was shouting at her and by ensuring that this matter was resolved.
In relation to the complainant’s allegation her colleagues spoke in their own languages, this was never submitted to the respondent as a complaint, and, if it had, it would have been addressed. Also, if the complainant had complained that a colleague referred to her as fat, or if she had complained that someone had made inappropriate sexual noises in her direction, these matters would also have been investigated fully in accordance with the company’s procedures.
The Burden of Proof
Referring to section 85A of the Employment Equality Act 1998 which provides that the burden of proof is on an employee in the first instance to show that he or she has been discriminated against, Ms McDevitt cited the case of Mitchell v The Southern Health Board, DEE011. Here, the Labour Court stated that “…the appellant must prove as fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.” For the respondent, Ms McDevitt submitted that the complainant has failed to discharge this evidential burden and her complaint cannot succeed.
It is the respondent’s case that the complainant has failed to prove or even indicate less favourable treatment on the ground of gender compared with another person in a similar position. From the respondent’s perspective, no dismissal occurred within the meaning of section 1 of the Unfair Dismissals Act 1977 – 2015 and the complainant has failed to meet the requirements of the burden of proof to show that she has been constructively dismissed.
Evidence of the Complainant:
The following is a summary of the complainant’s evidence.
As a record of the allegations of harassment and sexual harassment against the respondent, the complainant submitted a document that reads in some respects like a diary. She said that she compiled this from notes that she wrote in 2016 and 2017. This document comprises almost 50 typed pages laid out in five chapters and describes the conduct of the employees in the respondent’s company who the complainant alleges harassed her. Another document submitted in evidence contains copies of text messages between the complainant and her colleagues and photos of the unit where the she worked.
The complainant said that when she started work in December 2015, the unit was busy and she focussed on learning her job. She described the set-up in the kitchen. She and Joe, from Romania, worked on starter preparation and two Chinese people provided cover when needed. There were seven cooks, all from China. Of these, the complainant identified three, Felix, Ivan and Adam, who she said harassed her. A kitchen porter from Moldova started on July 8th 2016. Eight employees worked in customer services and these were managed by the supervisor, Paula, who is Hungarian. Five drivers also worked at the unit.
In January 2016, the complaint said “Joe started shouting at me” and she said she felt he was watching her. She said that she spoke to the kitchen manager twice about Joe and that he spoke to Joe about his behaviour. This manager left on January 17th 2016.
Felix started as the kitchen manager on January 18th. The complainant was still working on starters. She said that she thinks that Felix noticed that Joe “was mean to me”. She thinks that Joe was trying to move her from the starter job and that he was trying to establish seniority. She said that Felix said she was slow and not good enough and that he gave her much more time-consuming duties than Joe. The complainant said that Felix told her to do cleaning jobs and when she complained, he said, “do you want to work here?”
The complainant said, “the guys ridiculed and laughed at me” and said that “women should be at home with children.” She said that they “told me to go home, they don’t need me in the kitchen.” She said that she complained to Felix about why they were talking to a woman in that way and she said he responded, “because you are a woman.” As a result, she said she felt humiliated and treated “like a sexual object, not a worker.”
One of the complainant’s chef colleagues was Ivan. The complainant said that Ivan told her that he “needs a new relationship” and that “he doesn’t need his wife.” On one occasion, when she was getting a box from the cold room, the complainant said that Ivan was behind her “groaning and moaning and making sexual noises.” She said she was scared and asked him what he was doing. She said that she felt humiliated and that she was being sexually harassed. She said that she felt like a victim. In response to Ivan’s behaviour, the complainant said that she told him to stop and that he laughed and said it was a joke. Another time, the complainant said that Ivan asked her how she copes with loneliness and that she felt humiliated.
On one occasion when she and Ivan were chopping onions, the complainant said that Ivan remarked that her belly was bigger than her breasts and he told her to lose weight.
In February 2016, the complainant said that she told a colleague from the sales team that she was going to Poland for fertility treatment. She said that her colleague told the employees in her unit and then “everyone knew I can’t have a baby. Now they say I can have sex with everyone.”
The complainant said that her colleague from sales was giving her a lift and she told her how she was being treated by her colleagues. She said that this colleague said that she wasn’t able to help her, but that she gave her friendly advice that didn’t work. In April 2016, the complainant said that she complained to her supervisor, Paula, but that Paula said that she couldn’t interfere in what went on in the cooks’ section.
In May 2016, the complainant said that the lock on the toilet door wasn’t working. While she was using the toilet, she was interrupted by Ivan. She said that her privacy was violated and that it was “the worst thing that could happen.” She said that this incident was “really scary on top of the fact that he had behaved sexually towards me.” Another time, the complainant said that the toilet door became stuck and she had to shout for help to get out. She said other colleagues also got locked in the bathroom.
In the months of February, April and June 2016, the complainant said that she complained to Paula, her supervisor, about how she was being treated by her colleagues. She said that the first time she spoke to Paula, that Paula just “shrugged her shoulders,” and in April or June, she said that she couldn’t interfere in what went on in the kitchen.
Referring to an incident that occurred in the kitchen, the complainant said that a container fell on her head while she was washing dishes.
On another occasion, the complainant said that she asked Felix to lift a box from a high shelf in the cold room. She said that she told Felix that “weights that girls can lift are less than men” and that Felix responded, “my kitchen does not need girls.” She said that Ivan, another chef, said that he didn’t need a girl in the kitchen. Before she finished describing how she was treated, the complainant said that Ivan forced her to clean out the grease container and told her that she would lose her job if she didn’t do so. She said that Ivan “was standing over me” and “he started making sexual noises.” The complainant said that she felt humiliated and that this was a “show of power.” She said that “he made me a sexual toy to make fun of me.”
Asked by Mr Hanaphy why she eventually decided to leave her job, the complainant said that she was “crying very often.” She said that she went to meetings in her church and that she felt very depressed. She said that she felt that no one wanted to help her and that she was crying at night and having nightmares. She said that she went on two weeks’ holidays and she came to the conclusion that she couldn’t work there anymore.
In cross-examination by Ms McDevitt, the complainant said that she wrote her letter of dismissal herself. When asked why, if all these incidents had been happening since January 2016, she waited until October 18th 2016 to write to OD about them, the complainant said, “I decided it was the right time.” She agreed that she had OD’s e mail address from July.
When she was asked why she didn’t contact OD sooner, she said that Joe left the company in August and “one cause of stress cleared.” She said that there was an improvement for a time, but then she “got a hard time from Felix.” After she had the accident when the container fell on her head, she said that Felix “limited my contact with the team” and that he “texted me to say he was going to move me to a different shop.”
Ms McDevitt put it to the complainant that the operations director was in her store frequently and asked her why she didn’t speak to him about how unhappy she was. The complainant agreed that she saw OD in the shop between January and April 2016, more than once. She said she “knew someone from management was coming in but my shift was late and he left.”
Ms McDevitt asked the complainant why she didn’t send an e mail to OD to complain about the treatment of her colleagues. In July, she sent him a mail to ask him to get her hygiene certificate and she got her certificate. Why did she not think that he would help her to resolve her grievances with her colleagues? The complainant said that there wasn’t so much stress when Joe left in August, and then it got bad again.
Ms McDevitt referred to Joe’s departure on August 9th 2016. As the complainant left in October, Ms McDevitt suggested that she didn’t leave because of the way she was treated by Joe. The complainant responded that the “source disappeared but I still felt bad.” She said that any time she had reported how she felt to Paula and Felix, she was ignored. When she was leaving, things were still unresolved.
Ms McDevitt asked the complainant about her interactions with the operations manager, OM, who is from Poland. The complainant agreed that she spoke to OM about Joe. Ms McDevitt put it to the complainant that OM spoke to her about the company’s policies. She said that he spoke about health and safety policies. The complainant agreed with Ms McDevitt’s suggestion that the complainant would have known that OM was familiar with all the company’s policies. She also agreed that he was an appropriate person to talk to about her complainants. However, she said that she saw him only once or twice.
When OM spoke to Joe about the loudness of his voice and asked him to speak in a reasonable tone, she said she couldn’t remember if he had checked with her to see if the situation with Joe had improved. She said however that things didn’t get any better, one day was good, and the next day bad.
OM was appointed as operations manager in July 2016, and the complainant told him about her problems with Joe. Ms McDevitt asked her why, if the incidents with her other colleagues had occurred before July, she didn’t also raise these matters with OM when she complained about Joe? The complainant responded that she “didn’t have time to give him the whole story” and that she “had to do work.” When she was asked why she didn’t ask OM to meet her, she said “it didn’t cross my mind.” She agreed that she spoke to him about Joe’s loud voice, but she didn’t think about speaking to him, even though, like her, he is from Poland. She agreed that she never told him about the issues she complained about when she resigned.
Ms McDevitt asked the complainant about what she had referred to as the “sewage container” which was the grease container. She said that she was asked to do this job on one occasion, but that she was “forced by Ivan to do it.” She was asked if her colleagues also did this job and she agreed that they did.
The respondent submitted a cleaning schedule for the grease trap. The schedule shows that over a period of four months, the complainant cleaned the grease trap about five times each month. The document shows that most of her colleagues cleaned the grease trap more frequently.
In her evidence, the complainant said that she was expected to do cleaning duties and Ms McDevitt asked her if her male colleagues also did cleaning. She agreed that “every task was carried out by men and by me.” She also agreed that the detergents that she complained about were used by her male colleagues also, but she said that she had to wait for a week to get protective gloves.
Ms McDevitt asked the complainant why she disclosed to her colleague from sales that she was going to Poland for fertility treatment. In response, she said that she was asking for approval to take holidays. It appears that this colleague has no authority to approve holidays. The complainant said that she asked this colleague if she could take holidays because she was there the longest. She agreed however that, in February 2016, she asked Paula about her holidays.
The complainant made no response when Ms McDevitt asked her why, in her resignation e mail, she didn’t refer to her allegation that her colleagues laughed at her and humiliated her over her fertility treatment. She agreed that she “didn’t mention it.”
In reference to the broken lock on the toilet door, the complainant agreed that her male colleagues also got locked in the toilet.
When she was asked about her allegation that Felix limited her contact with the team, the complainant agreed that she had been talking to one of the drivers at the back of the kitchen. She agreed that the driver should not have been in the kitchen as he was not an employee. She said that this driver sometimes helped her to do the cleaning.
The complainant disagreed with Ms McDevitt when it was put to her that she received a copy of the company’s Dignity at Work policy on her first day at work. She then agreed that she signed to confirm that she received and understood this policy. Ms McDevitt showed the complainant a photo of the place where the policies are pinned to a noticeboard. The complainant said that she “never saw so many documents on the wall.” In relation to the “Open Door” policy referred to in the respondent’s submission, the complainant said that didn’t remember if that policy was on the door of the office in her workplace. She said that this door was always open, “so how could I see it?”
Ms McDevitt reflected to the complainant that most of her complaint was about Joe, who left the respondent’s company on August 9th 2016. In her resignation letter in October 2016, she sent a mail to OD complaining about Joe’s conduct, but she said she was aware of OD’s e mail address from at least from July. She made no complaint about her other colleagues until she had left her job.
Ms McDevitt referred to the diary of incidents that the complainant compiled in preparation for the hearing of this complaint. The complainant said that her diary notes were written originally in Polish and translated partially by a company and partially, by her. She said that the document originated from notes she wrote on scraps of paper and which she put into a folder. She disagreed that the final document originated from a different source and she said that nothing was created after the events. She agreed that the events were not set out in chronological order, but she said that she was very distressed and stressed at the time.
Referring to the use of phrases in the document such as “reduction of freedom of expression” (page 30) and “lack of equality rights” (page 41), Ms McDevitt asked the complainant if this was her translation from Polish. The complainant said that this was “based on her own translation and the translation of the company she hired.” She said that “when she wrote up the notes, she reflected what happened.” In response to Ms McDevitt’s suggestion that some of the expressions could have been inserted by the translator, the complaint said that this was “possible,” but they were “my own reflections.” Asked about the composition of the document and the references and cross-references, the complainant said that she has a Master’s Degree and she remembered how to use references to make it easier for a reader.
In her evidence, the complainant said that her last day at work was September 27th 2016, and that she then went on holidays then for two weeks. She said that before her holidays, she “got a message that she was fired.” She referred to a copy of text messages in her book of evidence. All quotations are taken directly from the messages. On September 25th, the complainant sent a message to Felix saying, “hello Felix do I am working tomorrow? If yes what time?” Felix replied, “Tuesday 5 oclock. I don’t have anymore hours for you. Sorry about it. I decided after next week put you going to holiday then try you put in another store. We getting busy. I need people who working very fast.”
On September 30th, the complainant sent a message to Felix to say she wasn’t feeling well and would not be in. He replied, “ok. And you go on 2 weeks holiday from next week.” The complainant sent a message back: “Thank you (Felix)! I will go to Poland for 2 weeks holiday. Have a nice night.”
While she was on holidays, the complainant said that she decided to resign. In her evidence, she said that, from the message referred to above, she thought she was “fired.” She accepted an offer of another job and she started working there in the “first half of October,” before she sent the e mail to OD on October 18th 2016 in which she confirmed her resignation.
At the conclusion of the hearing, when all the evidence had been given, the complainant answered some additional questions from her counsel. She said that Joe was aggressive and used “crude vocabulary to me.” She said that “he would like to assert superiority and control” and that he “chased her around.” She said that Felix “didn’t behave as a leader.” She complained that she was not treated as an equal and that a hierarchy was created “in which I was at the bottom.”
Evidence on behalf of the Respondent:
In the following section, I have outlined in summary the evidence adduced by five witnesses for the respondent.
Evidence of the Chief Compliance Officer
CO outlined the structure of the company and explained that the respondent business is part of a group company that operates several well-known brands in the restaurant sector. He said that he drafted all the policies referred to by the respondent in their submission and that he was completely familiar with the contents. He said that employees are given a contract of employment when they join the company and a copy of the Dignity at Work policy and the Disciplinary Procedure. He said that the company employs people from different countries and “a key focus of the business” involves people working together well. This witness referred to page 2 of the complainants’ contract of employment which states,
“Verbal abuse, intimidation or any form of harassment, threatening or abusive behaviour will not be tolerated under any circumstances and will be regarded as gross misconduct.”
The third paragraph of the Dignity at Work policy sets out how complaints of bullying and harassment will be dealt with:
“All complaints of bullying and harassment will be taken seriously and treated confidentially, fairly and sensitively. (Name of the group company) is committed to ensuring that our workplace is free from bullying and harassment. To do this, the company will at all times apply the standards of an ordinary and reasonable person. No employee will be retaliated against for filing a complaint or report with a manager. All complaints should be directed to your Operations Manager or Director of Operations.”
The complainant’s operations manager was OM, a Polish national, and the director of operations was OD, the person to whom she sent her e mail confirming her resignation.
Page three of the Dignity at Work policy sets out a definition of harassment and sexual harassment. Included in the list of behaviours that constitute sexual harassment, are,
“Sexually degrading or other words used to describe an individual;
“Comments or questions about an individual’s body, sexual activity, prowess or deficiencies;
“Unwanted physical contact or abuse and unnecessary body contact.”
CO said that these were dismissible offences and that he had dealt with complaints of this nature in the company.
In support of the company’s efforts to ensure that staff understand its position on bullying and harassment, CO referred to an e mail he sent to all employees on December 2nd 2015. This communication was in anticipation of the staff social events that would take place in the weeks coming up to Christmas. The mail is sent to all employees and reads as follows:
“The festive season is almost upon us and I know that everyone is looking forward to spreading a bit of good cheer. With that in mind, I wanted to give you a friendly reminder that Group policies and procedures apply to social events we attend with colleagues or suppliers.
“Can all managers and supervisors please remind your staff members about the key aspects of our Dignity at Work Policy and Disciplinary Policy, copies of which are attached.
“Note that the Dignity at Work Policy covers suppliers and customers as well as (name of the group company) employees and exists to ensure that everyone is treated with respect and that no one is subjected to any insulting or other unwanted behaviour.
“We would ask everyone to drink alcohol responsibly and in moderation and to be aware of the effect that their behaviour may have on others both in person and on social media.”
Evidence of the Director of Operations
OD said that he is responsible for nine food production units such as the one where the complainant worked. He explained that each unit has five or six employees and each one is required to do “as much as they can, up to their skill-set.” He said that, in general, there are no kitchen porters employed and everyone does a share of the cleaning.
The unit where the complainant worked opened in December 2015. The complainant commenced employment on December 13th. OD said that for the first six months, he was in the unit about twice a week. At the start, he was there up to four times each week.
Ms McDevitt asked this witness about e mail contact with the complainant on July 19th 2016 and he said that she sent him an e mail asking for a copy of her food hygiene certificate. All employees participate in this course in the first weeks of their employment. Generally, the certificate is issued by the training officer and placed on an employee’s personnel file. They are not issued to employees, although OM gave hers to the complainant on July 29th 2016.
In cross-examination by Mr Hanaphy, OD said that Paula was the supervisor of the complainant’s unit. He agreed that the complainant was entitled to inform Paula if she had problems at work, but he said that he had no knowledge of the complainant informing Paula about any issues, although, in her resignation letter, she claims to have done so. OD said that when he received the complainant’s resignation letter, he spoke to Paula and she was shocked. She said that she never saw any of the behaviour described in the e mail. She said that Joe talked very loudly, but that the complainant did not complain about this.
He referred to the “Open Door Policy” posted on the wall near the dry goods room and said that the purpose of this is to “advise people that I’m there for them.”
OD said that Felix was employed as a kitchen manager. He said that he had no authority to dismiss anyone. Mr Hanaphy referred to Felix’s text message to the complainant on September 26th 2016 in which he said he had no hours for her. He said that the complainant was entitled to assume that Felix had the authority to dismiss her, however, OD disagreed.
Referring to the e mail that the complainant sent to him on October 18th 2016, OD said he was “stunned” when he read it. OD said that the complainant’s resignation letter referred to the behaviour of Joe, who left in July 2016. It also referred to one of the chefs who “did strange sounds. If you know what I mean.” She said that her male colleagues called her “fat” and that the Chinese chefs spoke in Chinese to each other and that she felt “that there is no equality in this kitchen.” She alleged that the kitchen manager, Felix said, “my kitchen does not need girls.”
He said that the complainant attached a photo of herself crying and he wanted to meet her to talk about what had happened. His view is that good staff relations lead to good business. He asked the complainant to meet him. His e mail correspondence refers to him saying he was “booked up” on the two dates proposed by the complainant and he asked OM to meet her instead. On October 23rd, OM wrote to the complainant and proposed a time and place to meet; however, the complainant cancelled the meeting and said she would be in touch to arrange another time. She did not contact OM again and a meeting never took place.
In response to Mr Hanaphy, OD said that he asked the female employees in the unit where the complainant worked if they experienced similar problems to those she had described. He said he also spoke to Paula about the contents of the complainant’s resignation letter. He said he then made enquiries with all the staff in the unit. No other employee said that they witnessed any of the behaviour described by the complainant in her resignation letter.
Evidence of the Kitchen Manager
Felix said that he commenced working with the respondent in 2006 and he was the kitchen manager at the unit where the complainant worked from January 2016 until May 2017. He said that he worked in the back of house section with the complainant. He said that the complainant never complained to him about people treating her differently because she is a woman. He said that she never had to do work that others didn’t do. In relation to the complainant’s statement that Ivan behaved in a sexually explicit way towards her, Felix said that he didn’t see this behaviour and he never saw anyone behaving in a sexual manner towards the complainant. Ms McDevitt asked Felix if he was aware that the complainant was getting treatment for her fertility and he said that he was not aware of this and the issue was never discussed in the kitchen. He said that he never heard anyone making remarks about the complainant’s weight or calling her “fat.”
Ms McDevitt put it to Felix that the complainant said that he didn’t want women working in the kitchen and he responded that he did not make this statement. He said that he now has his own Chinese takeaway business where he has employed women.
In her evidence, the complainant said that she told Felix about how the other male employees were behaving towards her. Felix said that the complainant “never complained to me” about a colleague making sexual gestures. She never complained about being told she was fat. He agreed that she said that Joe spoke very loudly to her. Felix said that he talked to Joe and asked him not to speak so loudly. Felix said that Joe spoke in the same tone of voice to everyone, but, after he asked him to tone down his voice, he wasn’t so loud. Felix said that the complainant knew he had spoken to Joe, as she asked him if he had done so.
Ms McDevitt referred to the complainant’s description of Felix gesturing to his chest, imitating the female form and he said that this did not happen.
When he was asked if he understood what sexual harassment is, Felix said that is someone complains to him, he can talk to his boss for help.
The complainant said that Felix cut her hours in the unit. In response to his, Felix said that the complainant was going to college to study English and on Sundays, she couldn’t work as she went to church. Felix said that most of the employees started work at 4.00pm or 5.00pm, but the complainant was not available until 7.00pm. When it was put to him that the complainant’s hours were cut in July, August and September, the witness said that the unit is not busy during these months and that others also worked less hours.
Felix said that he thought that the respondent’s restaurant in Dundrum might be more suitable for the complainant and he said that she agreed with this proposal and said that she would look for accommodation near there. He said that the complainant didn’t like the fact that, in the takeaways, everybody had to do cleaning, but the restaurants employed kitchen porters. He said that there was “no bad intention” in his communication to the complainant that he would find her another location.
In response to questions from Mr Hanaphy, Felix said that the complainant worked slowly and that she was slower than the male employees. Mr Hanaphy referred to Felix’s text message on July 28th 2016, in which he said, “I told you after you finish wash you have to clean your place and back very well. If you don’t want get you better or still keep like this you will lost this job.” Mr Hanaphy suggested that this was a threat of dismissal, but Felix disagreed and said that the complainant agreed that she would like to move to Dundrum and that she would look for accommodation near there when she came back from holidays.
Mr Hanaphy asked Felix why he thought the complainant should be sent to work in a different place. In response, he said that she didn’t like the cleaning part of the job and that she preferred to do food preparation. If she worked in one of the respondent’s restaurants, she might not have to do so much cleaning because more kitchen porters would be working there.
Evidence of the Supervisor
Paula said that she started working for the respondent in 2013 and that she became the supervisor in the unit where the complainant worked when it opened in December 2015. She said that when new employees join, she gives them a copy of the company’s policies and gets them to take them home and read them. She then asks them if they have questions and gets them to sign that they accept and understand the policies. Paula said that if the complainant wanted to discuss any part of a policy in Polish, then OM, the operations manager, could discuss the policies with her. Paula said that the complainant never suggested that she didn’t understand any of the company’s policies.
In her evidence, the complainant said that she didn’t see the “Open Door Policy” because it was at a difficult angle in the dry goods operations. Paula said that the policies are visible when the door of the office is open and that they are in a location that staff walk by to get to the walk-in fridge.
Paula said that she was almost all the time in the kitchen of the unit and she was shocked when she read the complainant’s letter of resignation. She said that she herself worked all the time in proximity to her Chinese colleagues and she never witnessed or experienced the treatment that the complainant described. She said that she was not treated any differently because she is a woman and she didn’t experience any different treatment on the grounds of her nationality.
Paula said that on one occasion when she was speaking with the complainant and other staff in the store, the complainant said that Joe speaks very loudly and that he was giving out to her for not doing her job properly. She said that she spoke to Joe and she told him that if he had problems with the complainant, he was to speak to Felix, and not directly to the complainant. She said that, after this, the complainant had no issues with Joe.
In response to questions from Mr Hanaphy, Paula said she didn’t think that this conversation about Joe was serious, and that it was an informal chat.
Evidence of the Operations Manager
OM commenced working as an OM for the respondent company in June 2016. He is responsible for the operation of nine units and this includes health and safety, food safety and the hiring of staff. He said that from July 2016, he was in the unit where the complainant worked on a frequent basis, as there was a food safety issue in that store. When he met the complainant the first time, he said that they had a chat for about 15 minutes in Polish. After that, he met her a few times and spoke to her. He said that she asked him about a salary increase. OM said that he got the rates of pay from the operations director and he informed the complainant that she wouldn’t get an increase until she had progressed in the job and learned the recipes. In another discussion, OM said that the complainant told him that she was interested in progressing. He told her that if she improved her English and learned the recipes, she would get a better job. He said that the complainant asked him about a certificate for the training that she had done on food hygiene and he got the certificate for her.
OM said the complainant complained to him about Joe shouting at her. He said that in kitchens, some people have a habit of shouting and Joe had a particularly loud voice. He said that he spoke to Joe and asked him to lower his voice. OM said that there was no suggestion from the complainant that Joe was vulgar or that he made chauvinist or racist comments.
Ms McDevitt referred to the section headed “IV Chapter” in the complainant’s booklet with the page title, “Joe hated Poles.” OM said that he complainant did not say that Joe hated her. She said that Joe was very loud, and OM agreed that Joe was very loud, even when he spoke someone close-up. He also had a very strong accent and OM said that he asked him to control his voice, especially when communicating with the complainant. He said that he met her after he had this conversation with Joe and she said that the problem was resolved. He said that he then told the complainant to let him know if there were any more problems.
OM said that, in all his conversations with the complainant, she never indicated that she was unhappy. After their conversation about Joe’s loud voice, they had no further discussions about problems in the workplace, apart from food safety issues.
OM said that part of his job was to ensure that dignity in the workplace was maintained and that he tried to explain “as simply as possible” to the managers that discrimination on the grounds of gender or race was not appropriate. He said that he told them that incidents should be reported to him for further investigation.
Following her letter of resignation, OM said he contacted the complainant and arranged to meet her on October 24th 2016 in Starbucks in Fleet Street. The complainant sent him an e mail at 11.17pm on the 23rd and said that she couldn’t make it but that she would contact him again to arrange to meet. She didn’t get in touch again.
Before her resignation, OM said that he understood that the complainant’s hours were reduced because she commenced a course in college and she wasn’t always available to work at weekends.
In response to questions from Mr Hanaphy, OM said that Felix’s text, in which he said that the complainant would have to improve her standard of cleaning, was “improper.”
Findings and Conclusions:
Chronology of Events
A brief summary of the events that occurred from the date that the complainant commenced employment with the respondent until her resignation, may be useful in advance of setting out my findings on this complaint.
The respondent opened a new unit and the complainant commenced employment there on December 13th.
The kitchen manager left, and Felix joined on January 18th. From the middle of this month, the complainant said that she was asked to do more work, including work that she felt was not part of her contract, such as cleaning.
The complainant said that she told a colleague that she was contemplating fertility treatment. She said this resulted in lewd and insulting comments from her male colleagues. Also, in February, the complainant said that she complained to Paula about how she was being treated by her colleagues. Paula said that no complaints were ever made to her and that the complainant told her informally that Joe was speaking very loudly to her and that he criticised her for not doing her job properly.
The complainant alleges that one of her chef colleagues told her she was sexy and made unsolicited advances towards her.
The complainant said that the lock on the toilet door was broken and she was interrupted in the toilet by Ivan. In her record of events that she submitted at the hearing, the complainant said that “the greatest intensification of the harassment took place in the period from mid-January 2016 to early May 2016.”
The complainant said that when she complained to Felix about her colleagues mistreating her because she is a woman, that Felix simply gestured at his chest. Also, this month, the complainant said that when she complained to Paula that Paula said that she couldn’t interfere in what went on in the kitchen.
OM joined the company as operations manager on July 19th. The complainant sent an e mail to the operations director, asking for a copy of her food hygiene training certificate.
Joe left the company on August 9th.
On August 26th, while the complainant was washing dishes a container fell on her head from a shelf above the sink. During this month, the complainant said that Felix belittled her because she couldn’t lift a heavy container and that he said, “my kitchen does not need girls.”
On September 26th, Felix sent the complainant a text message in which he said that he needed someone who could work fast and that he was going to look for another store for the complainant. She went on holidays for three weeks from the end of the month.
On October 18th, the complainant resigned.
On December 15th, the complainant submitted her complaints to the WRC under the Equality and Industrial Relations Acts.
The complainant’s solicitors wrote to the WRC to say that they wished to proceed with a complaint under the Employment Equality Act.
February 6th 2018
The complainant submitted details of her complaint in a 49-page document to the WRC.
The Complainant’s Compilation of Incidents
Having examined the document submitted by the complainant at the hearing, it is my view that this is not an authentic account of what occurred while she worked for the respondent. I find that the language in the complainant’s letter of resignation, while not perfect, is reasonable English and, in that letter, she described some basic complaints about what she alleged she experienced over the previous 10 months. It is my view that the document submitted in preparation for the hearing was not written by the complainant, despite her assertions that she compiled it from “scraps of paper.” If she was compiling notes about alleged harassment and sexual harassment during the months of 2016, it was incumbent on her to bring this matter to the attention of a senior manager.
Much of the content of the document submitted by the complainant in preparation for the hearing is concerned with matters of health and safety and appears to be in anticipation of a personal injuries case rather than a complaint of discrimination. This document contains photos of various sections of the kitchen and includes a floor plan of the unit. There are sections headed, “Accident at Work,” Wounds, scars, First-aid, fire-fighting,” “Joe splashed the oil,” “Detergents,” “Rinsing the elements of the cooker hood,” “Washing the Grill,” “Washing the hood,” “Washing the hood over the fryer,” “Washing dishes without apron, drafts (sic) wet clothing” and “Washing the sewage container.” It is my view that these issues have no relevance to a complaint of harassment or sexual harassment.
Throughout the document, there are references to every possible example of discrimination including “reduction of freedom of expression,” “isolating me from my team,” “depriving me of my assignments,” sexual abuse and overtone,” “attacks on my reputation,” “disturbing my social relations,” “harassment and humiliation,” “interfering with my privacy,” “violating my space.”
It is my view that this document is an attempt to compile a schedule of complaints against the respondent, comprising allegations of breaches of health and safety legislation and of equality law. I find that it is completely lacking in authenticity and is a disorganised attempt to throw as many allegations as possible at the respondent, in the hope that some might be found to be credible.
Has the Complaint Been Submitted on Time?
Section 77(5) of the Employment Equality Act 1998, as amended, provides for the submission of complaints to the WRC within six months of a discriminatory act:
“Subject to paragraph (b) a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
Paragraph (b) provides for an extension of the time to submit a complaint to 12 months, for “reasonable cause” however, no application was made by the complainant for an extension of time.
I have carried out a thorough analysis of the complainant’s document in which she set out her allegations of discrimination and harassment. It is apparent to me that the behaviour of two of her colleagues, Adam and Ivan, occurred, in her view, between January and early May 2016. As she submitted her complaint on December 15th 2016, her complaint about allegations of harassment by these employees is out of time.
The Burden of Proof
The other allegations submitted by the complainant refer to the conduct of the kitchen manager, Felix and of her colleague in the food preparation operations, Joe.
The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.
“85A – (1) 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.”
The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than her male colleagues.
The Primary Facts
Five people gave evidence for the respondent and none of the witnesses said that they saw or heard the conduct described by the complainant. At least two other women worked in the same unit as the complainant and her male colleagues. Neither reported any incidents such as those she described as harassment and sexual harassment.
The respondent company has in place a Dignity at Work policy to manage incidents of harassment and sexual harassment and to discourage conduct of this kind. The complainant agreed that she received a copy of this procedure. She did not utilise it to have her complaints dealt with.
In defence of her decision not to use the Dignity at Work procedure to have her complaint investigated, the complainant’s counsel referred to the case of Porter v Atlantic Homecare Ltd,  ELR, 95. In this complaint, the complainant did not use the company’s grievance procedures because she claimed that the environment at work caused her to be afraid to use the procedures. It is apparent that the complainant had a reasonable relationship with the operations director and the operations manager and I do not accept that the same circumstances applied to the complainant in the case under consideration here.
The respondent company had a notice permanently posted in the area where the complainant worked which encouraged them to speak up about issues of concern:
“When you have a question or concern, your Store Managers / Supervisors / Kitchen Managers are in the best position to respond quickly and accurately. If you want further clarification, speak with ANY of our management team, regardless of title.
“Please feel free to e mail OD@xxxx.ie should you not receive an appropriate response from your store management team.”
The operations director and the operations manager visited the unit where the complainant worked on a regular basis. In July 2016, the complainant sent an e mail to the operations director to ask for a copy of a training certificate. She did not tell him about the conduct of her colleagues which she said was “intensified” from January to May 2016.
The operations manager is a Polish national and when he joined the company in July 2016, the complainant spoke to him about the possibility of a pay increase. She did not mention the conduct of her colleagues which she alleged was still going on. Her explanation that she “didn’t have time” to tell him “the whole story” is simply not credible. The complainant said she was making notes throughout 2016 about incidents at work. If she had notes, then little effort would have been required to cobble together an e mail to alert this manager to her concerns.
Felix was employed by the respondent in 2006 and in 2016, he was the kitchen manager in the unit where the complainant worked. At the hearing of this complaint, he gave direct and convincing evidence about his relationship with the complainant. Apart from her complaint about Joe’s loud voice and her unhappiness with the cleaning aspects of her job, I am satisfied that the complainant did not speak to Felix about harassment or sexual harassment by him or her chef colleagues.
From the evidence submitted at the hearing, I am satisfied that the complainant was not expected to do any more cleaning than her male colleagues and that no discrimination arose from the allocation of cleaning duties.
It is apparent that the lock on the door of the staff toilet in the unit where the complainant worked was broken. The embarrassment of this was suffered by both the male and female employees. No evidence was submitted that the complainant brought this to the attention of any manager.
When she was asked why she waited until October 2016 to let her managers know what she claimed was going on in her workplace, she said that she “decided it was the right time.” If she was subjected to the conduct she complained about, the “right time” was immediately following the occurrence of these alleged incidents and the complainant presented no evidence to explain why this did not happen.
There is clear evidence that in February, the complainant spoke to her supervisor, Paula, about Joe’s loud voice and the fact that this was upsetting her. She also spoke to Felix about Joe, and Felix said he asked Joe to tone down his voice. In their evidence, Paula and Felix said that the complainant never raised any issues about vulgarity, abuse or superiority on Joe’s part. It is my view, that, as the complainant considered that it was appropriate to complain about Joe’s loud voice, it would have been reasonable for her to complain about harassment or bullying. Her difficulties with Joe’s loud voice were dealt with by two managers and she could have expected a similar response from Paula or Felix if she had told them that she was being harassed.
Joe left the respondent’s employment in August 2016. As she resigned in October, the alleged unacceptable conduct that the complainant said he engaged in, cannot have been a contributory factor in her decision.
As a person with a Master’s Degree, it must have been difficult for the complainant to accept a job that was below her level of competency. She said that this was her first job in Ireland and, it is probable that she had to work in a job where fluency in English was not essential. She attended English language classes while she worked for the respondent. The complainant said that she got a new job “in the first half of October 2016.” It is my view that she always intended to move from the respondent’s employment as soon as she could improve her English and find something more suitable to her skills.
At the hearing, the complainant’s evidence was not convincing, and she brought no other person to support her assertions that she was treated in the manner that she described. The respondent’s managers dealt with her complaint about her colleague’s loud voice. The relevant policies were in place and available to the complainant to show her how to deal with an experience of harassment or bullying. I am satisfied that, if they had been asked, the respondent’s managers would have dealt with any complaint of this kind.
Having considered the evidence of the complainant, I find that she has failed to set out the primary facts which lead me to believe that discrimination occurred in this workplace. No workplace can be a completely perfect and satisfying environment for employees and I am certain that this workplace had some failings. However, I am satisfied that the complainant was not treated in the manner she described in respect of bullying, harassment and sexual harassment. It is my view that this complaint was contrived and opportunistic and a waste of the resources of the respondent and the WRC.
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.
As I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her gender, I have decided that this complaint is not upheld.
Dated: 22 February 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Bullying, harassment, sexual harassment