ADJUDICATION OFFICER DECISION
26th February 2019
16th April 2019
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints 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 was employed as a Sales Assistant from 3rd October 2013 to 29th September 2018. She worked 7 hours per week and was paid €401.58 per month. She has claimed that she was harassed, victimized and was constructively dismissed. She has sought compensation.
1) Employment Equality Act CA – 23035-002/003
Summary of Complainant’s Case:
On 19th June 2018 the Complainant attended a meeting in store to discuss the future of that store, its potential closure and potential redundancy. In the presence of a colleague, a sales assistant, her immediate manager placed his hand on the Complainant’s chest, pulled up her top, patted her left breast and said, “we will cover them up for this meeting”. She immediately felt uncomfortable intimidated and violated. She believes that this was discriminatory treatment on grounds of her gender, harassment and sexual harassment. This has had an immediate detrimental effect on her health and was certified unfit for work on certified sick leave. On 20th June 2018 the Complainant made a complaint to the Team Voice Representative. The Representative undertook to refer this to the Store Manager. She heard nothing and again contacted the Representative on 2nd July 2018. On 3rd July she attended a meeting with the Store Manager to address the store closure. At this meeting she referred to her complaint and having listened to her the option of going with a formal complaint, which she did and he requested that she send an email containing the details of her complaint. She did this on 25th July 2018. On 3rd July she was informed by the Store Manager that the Regional HR Officer was advised of this matter and he would be in contact. She heard nothing from him. On 25th July she emailed the Store Manager and recounted the incident and advised him of the effect that it has had on her. She also declined to have the matter addressed by mediation. This email she believes was a formal complaint. On 26th July the Store Manager ‘phoned her about the future of the store and the potential redundancy. He made no reference to her complaint. On 27th July she received an email from the Regional HR Officer requesting a meeting. A meeting took place on 31st July 2018. At this meeting she was repeatedly told that she would not find out the outcome of the investigation. By letter 9th August the Respondent wrote to her advising her of how serious they matter was but also said “unfortunately I will not be in a position to discuss the outcome of the investigation”. By email she wrote to the Regional HR Officer advising that she had heard nothing and pointed out that it caused her considerable distress. On 19th September 2018 the Respondent replied referring to non-receipt of medical certificates. In that correspondence he also said that the complaint was being taken very seriously but unfortunately, we are unable to inform you of any outcome. She was later advised that the store where she had worked was to close on 15th September 2018. They sought from her a position about her future. She replied that she had supplied one medical certificate and she had two more and enquired where to send them. She was reluctant to give them to a manager that she did not know in a store she had not worked in. Further correspondence was exchanged and on 19th September 2018 she was advised that the Manager against whom she had made a complaint was “no longer in the business”. No further information was provided. She then learned that there was a function to mark the closure of the store, but she was not invited. She maintains that this amounts to victimisation. On 18th October she wrote to the Respondent summarising how she believed she was treated and she advised that she was being viewed as a nuisance and was being pressurised to take redundancy. She then advised that she was being forced to resign her position. On 15th October the Respondent replied stating how they had dealt with her complaint and repeated that they were unable to provide any further detail about the alleged perpetrator. She believes that again the Respondent failed to address her complaint. She submits that any male is a comparator for this case. She stated that the conduct amounted to sexual harassment as defined in the Act. She stated that the Respondent failed to properly address her complaint. She cited case law in support. She is seeking the maximum compensation.
Summary of Respondent’s Case:
When the Complainant commenced employment, she received a written contract of employment and a staff handbook with all the rules and procedures. These were contained in the company’s intranet and it is necessary to confirm that you have read them before you can enter the site properly. These policies included the Equality and Diversity policy. This policy was updated in July 2016 and all staff were notified of that change. On 19th June 2018 all staff in her store were notified that the store would close in September 2018. Staff could transfer to a nearby store on the same terms and conditions or receive statutory redundancy. The Complainant alleges that she was inappropriately touched by her manager and that she reported this to the Team Voice Representative. She asserts that this was a formal complaint. This is not the case. On 3rd July 2018 the Team Voice Representative informed the Store Manager. That day the Store Manager met with the Complainant to consult with her about the store closure. The matter of the alleged incident was also discussed. She was offered a form of mediation but declined and requested time to reflect as she had to deal with a personal matter as well. It was agreed that she would contact him by email. The only communication he received was a medical certificate. He tried to call her on several occasions without success until 26th July. She informed him that a formal complaint was made on 25th July 2018 and she sought to have it investigated. The alleged perpetrator manager was immediately suspended from work. The Senior HR Manager and Area Manager met with the Complainant on 31st July 2018. The Area Manager met with the alleged perpetrator manager as part of the investigation and he immediately resigned his position. In error this was not communicated to the Complainant. On 7th August 2018 the Area Manager wrote to the Complainant explaining how serious they were taking the incident. She pointed out that they would not be in a position to provide specific outcome details to the Complainant. They advised her of the counselling service available. The Senior HR Manager tried to contact the Complainant on 16th August and 3rd September to update her on matters but didn’t speak to her, he requested her to contact him. She did not reply. The Respondent made attempts to speak to her but she didn’t reply as they wished to speak to her about the store closure and the incident. On 18th September the Complainant contacted the Area Manager expressing unhappiness about not being contacted since her letter dated 7th August. This was despite the many efforts that the Respondent had made to contact her. The Senior HR Manager replied by email on 19th September informing her of their efforts to speak to her with out success. He advised her that she had not responded about the option following the store closure which had now happened. He also advised her that he would not be in a position to inform her of the outcome of the investigation. He asked her to contact him as he wanted to tell her that the Manager had resigned and he wanted to discuss what she wanted to do about her future in the company. There was further email exchange between them on 19th September. She expressed her disappointment and despair that they were unwilling to provide her with basic information regarding the investigation into her complaint. The Respondent copied her with the letter dated 14th which informed her that the alleged perpetrator manager was no longer in the business. She emailed the Senior HR Manager on 8th October 2018 indicating that she wished to resign her position. The Respondent gave a comprehensive reply on 15th October. She was informed that the manager had resigned as a result of the investigation and he pointed put that she had failed to contact them. He affirmed to her that her position was not redundant. He repeated that redundancy could have been sought. She did not chose to accept the redundancy package offer.
They stated that their company respects and supports all staff. They treat all staff fairly. They have comprehensive policies and they had updated the Equality and Diversity policies in 2016. All managers were briefed, updated and trained on these policies. The system that they use require staff to update themselves on these before entering the employee portal. Once they were advised of the alleged incident they discussed it with her and gave her options as to how she could proceed. Once she decided to go the formal route the manager was suspended. As a result of this investigation the manager resigned his position. She failed to engage with the company. She chose not to engage with the company and resigned her position. The investigation was not flawed.
Regarding the allegation of victimisation by not being invited to the store closure function. This marking of the closure by the staff was not initiated or run by the company. They had no knowledge of the matter or who was invited, so this allegation is rejected. This overall claim is rejected. They cited case law in support.
Findings and Conclusions:
I find that in the first instance the Complainant must establish a prima facie case of discrimination.
It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011,  ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
I also note in the case of Arturs Valpeters v Melbury Developments Ltd  21 E.L.R. 64 the Court stated in respect of the provision in Sec 85A that; “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
I note that Sec 145(1) states, “anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”
I note that the Respondent has accepted this responsibility.
In this case I find that the Complainant experienced a behaviour/conduct perpetrated by her immediate manager and witnessed by a colleague that she believed was unwarranted conduct which in her opinion violated her dignity and created an intimidating environment.
I note the definition of harassment under Section 14A (7) of the Employment Equality Act , “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.”.
I find that sufficient evidence was produced to establish the presumption of discrimination.
Therefore, the onus switches to the Respondent to prove that there is no infringement of the principle of equal treatment.
I find that the Complainant experienced this alleged incident of harassment on 19th June 2018.
I note that the incident was witnessed by a colleague who was the Team Voice Representative.
This matter was not brought to the Respondent’s attention until 3rd July 2018.
I find that the Store Manager met with the Complainant that day and went through the options available to her, including mediation or formal routes.
I find that the Complainant did not make a formal complaint until 25th July 2018.
Upon receipt of this complaint the alleged perpetrator was immediately suspended.
I note that the Respondent undertook to carry out an investigation into the complaint.
I note that a meeting took place between the Complainant and her colleague and the Senior HR Manager and Area Manager. At this meeting management pointed out that the Complainant would not be told of the outcome of the investigation.
I note that on 7th August the Respondent wrote to the Complainant concerning the complaint, however they stated, “Unfortunately I will not be in a position to discuss the outcome of these investigations with you”.
I note that the Respondent repeated this statement to the Complainant on a number of occasions.
I note that this caused considerable concern and unhappiness for the Complainant.
I note that the Complainant wrote a detailed letter on 18th September setting out a number of pertinent questions to be answered and informed the Respondent how she felt. She stated; “I have heard nothing”, This has caused me considerable distress and upset and has required me to seek medical advice”.
Therefore, I find that the Respondent was well aware of the consequences of this incident on her well-being.
I note that the Respondent replied on 19th September advising that they are taking the matter very seriously but also reaffirmed “we are unable to inform you of any outcome”. They also advised that the alleged perpetrator was no longer in the business.
I find that it was not sufficient to advise her that her immediate manager who she believed had harassed her was no longer in the business.
I note that the Respondent endeavoured to contact the Complainant without success.
I also note that the Complainant was not sending in medical certificates covering her absence.
I find that the Complainant was entitled to have her complaint properly investigated.
I find that she was entitled to find out the outcome of that investigation.
I find that she was entitled to a decision on whether her complaint was upheld or not.
I find that she was entitled to know what the outcome was, concerning her alleged harasser.
I find that the Respondent has failed to address these matters.
As a consequence, I uphold her complaint of harassment and discrimination.
I note that the Respondent had policies and procedures in place and had managers trained on these policies and procedures.
I note that all staff were given access to these policies and procedures.
I find no evidence to support the Complainant’s allegation of victimisation.
I find that the social event to mark the closure of the store was not a company function and they were unaware of it.
I find no evidence that the Respondent had any involvement in arranging who was invited.
Therefore, I find that that part of the claim fails.
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.
I have decided that the Complainant has established a case of discrimination for the above stated reasons.
I have decided that compensation is warranted.
I have decided that the Respondent should pay the Complainant compensation of €15,000.
2) Unfair Dismissals Act CA – 23035-001
Summary of Complainant’s Case:
Summary of Respondent’s Case:
Findings and Conclusions:
I find that the Respondent was not expecting her to resign her position.
I find that when she sent her letter of resignation on 8th October the Respondent did not respond until 15th October and they did not ask her to reconsider her decision to resign.
I find that there was fault on both sides in this case.
I find the Respondent’s failure to inform her of the outcome of this investigation has contributed significantly to her decision to resign.
I find that the Complainant failed to keep contact with the Respondent and failed to provide medical certificates.
I find that she did not exhaust the grievance procedure.
I note that she has advised that she has been unable to work since her resignation as she has been medically certified unfit.
Therefore if I were to find that she was constructively dismissed then according to Sec 7(1) of the Unfair Dismissals Act she would only be entitled to 4 week’s pay, €400 approximately.
Sec 7 (1) (c) (ii) of the Unfair Dismissals Act 1977 which states, “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”
I have decided that she has not met the benchmark to establish a constructive dismissal.
I find that she did not advise the Respondent that she was contemplating resignation.
I find that she failed to keep in contact with the Respondent
I find that she did not exhaust the grievance procedure.
I find that her claim should fail
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons, I have decided that she has not established a case of constructive dismissal.
I have decided that this claim is not well founded and so it fails.
Dated: 13TH June 2019
Workplace Relations Commission Adjudication Officer:
Harassment and victimization and constructive dismissal