ADJUDICATION OFFICER DECISION
An International Sales and Marketing Executive
A fashion company
Darragh McNamara BL instructed by
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
On the 1st March 2019, the complainant submitted complaints to the Workplace Relations Commission. They were referred to adjudication on the 20th May 2019.
At the time the adjudication was scheduled to commence, it was apparent that there was no attendance by or on behalf of the respondent. I noted that the respondent’s Chief Executive had engaged with the Workplace Relations Commission prior to the hearing and had made a submission the day before. This indicated that the respondent would not be in attendance or represented at the hearing. I have considered the respondent submission, as set out below.
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Act, 1977 - 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015following 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.
As per the well-established convention, I have anonymised this decision as it relates to sexual harassment.
The complainant outlines that she was subjected to persistent sexual harassment by the respondent Chief Executive, culminating in him downloading and disseminating her personal, intimate photographs. She also claims unfair dismissal. The respondent states that the allegation of sexual harassment is unfair.
Summary of Complainant’s Case:
The complainant is a graduate of marketing and graphic design. She is from Brazil and was studying in Ireland. She was messaged through her Instagram account by the Chief Executive of the respondent, who complimented her work. The Chief Executive offered the complainant work as an independent contractor. She worked on photo shoots and events for the respondent, for example travelling to Cannes. This role developed and the complainant commenced employment with the respondent on the 5th September 2017 and this ended on the 18th October 2018. She was paid €2,708.33 per month. She was responsible for marketing and events for the respondent, including the operation of a high-profile fashion competition. She liaised with partners and sponsors and developed a new range of clothes for the respondent. She did not receive a contract of employment or statement setting out the terms of her employment.
The complainant outlined that she was subjected to harassment from the respondent’s Chief Executive almost from the start of her time with the respondent. The Chief Executive sent an inappropriate message to her on the 31st May 2017, to which she gave a clear reply. She said that she thought that things would settle down and that the Chief Executive would stop. The Chief Executive ignored her requests that they have a professional relationship. The complainant referred to the Chief Executive’s text messages, which could be inappropriate or were sent to her late at night. She ignored some of the messages. He also contacted her friends or family on social media, without her permission. This included following a friend of hers on Instagram, which interfered with her relationship with this friend. The Chief Executive also interfered by phoning the complainant’s sister to offer to pay for her flight to Ireland because the complainant was unwell. He did this without the complainant’s knowledge or consent.
Visit to Brazil
The complainant outlined that she worked with the respondent to expand their business opportunities in Brazil. They arranged to meet representatives of a named company regarding a merchandising opportunity for large concerts. The Chief Executive explained that this would take place at a Coldplay concert in Sao Paulo. They travelled to Brazil to attend the meeting, but it was only when they arrived that the Chief Executive told the complainant that there was no meeting. The complainant said that she was frustrated as they had travelled to Brazil on false pretences. In her email of the 8th November 2017, the complainant explains “I don’t like to be really different from the others. I don’t want an Iphone X or Tiffany gifts. You don’t do it for [a named female colleague], for example.”
The complainant outlined that she wanted to stay working for the respondent despite the unwanted attention from the Chief Executive. She did not want to leave everything behind because of his behaviour. She said that she was based in one city while the Chief Executive was based in another city, so they only saw each other once a month. She tried to ignore his inappropriate comments, for example his reference to “their incredible partnership” and “it’s strange for sure not to talk with you every day – I still find things and want to tell you – heard Coldplay in a place I went to last week – and it took me right back to Sao Paulo.” The Chief Executive also referred to his wife as “solid and classical … doing the boring things I hate.” In other emails, he references his “other life” in the city where the complainant lives and also about holding or touching the complainant. The complainant said that she ignored the references to their personal relationship and to his wife. She wanted to contact him about work matters. The trip to Sao Paulo was under false pretences and not something to reminisce about.
The complainant said that she organised a busy competition over the course of a week. This was an occasion she worked directly with the Chief Executive. During the week, there was a chain of emails where the Chief Executive refers to his feelings for the complainant. He refers to falling in love with the complainant and that she had “the keys” to him. This was sent on the first day of the shows and made it very difficult for her. She wanted to stay to see through the competition. She replied “I don’t have the same feelings, I already told you, what can I do? You’re my boss. I like working with you, I admire you and all the work you put in [the respondent] but I don’t have this kind of feelings.”
The Complainant’s photographs
The complainant outlined that in October 2017, she met the Chief Executive at a prominent, city centre hotel where they addressed work issues over afternoon tea. Her phone required recharging and the Chief Executive offered to recharge it, using his laptop. She did not know it then but when she visited the bathroom, the Chief Executive downloaded her photographs from her phone and sent them to himself. This included her personal intimate photographs.
The complainant said that she only became aware of this through the Chief Executive’s email of the 7th March 2018. In this email, the Chief Executive refers to contacting his ex (who lives in Uruguay) about the complainant’s photographs on his computer. He stated “you [the complainant] gave me your photos” when the complainant’s phone was synced to the Chief Executive’s computer. While this email deals with many issues, the complainant’s reply is precise. She asks “Which photos? I haven’t given you any photos. Which photos are you talking about? Please don’t say you have my personal photos … you know I would never give it to you.”
In his reply, the Chief Executive repeats that the complainant “gave [him] like 20 photos” and that he was shaking when he found them. This giving is said to have occurred when the complainant’s phone was hooked up to his laptop. He refers again to speaking to his ex in Uruguay. The complainant immediately replies. She asks “Which 20 pictures? I want to know exactly which pictures. You know I would never send any pictures to you. You also know it’s not possible I have sent 20 pictures to you when my phone was plugged in your computer. It doesn’t make sense.”
The Chief Executive replied “I came to bed and put my laptop to check my mails and it come up and said [complainant] iPhone not connected and I was like ok ok ok to get it away and it said sync complete and then open new photos – it was mostly photos of outside [a hotel] or on the way over and then 2 photos of you! I was shaking I swear – I was so angry and confused – cause it was a situation I didn’t know what it was about.”
The emails were exchanged during the busy, intense week of the shows. Unlike the rest of the year, this was a period where the complainant and the Chief Executive worked at the same location. The complainant said that she did not know if the ex from Uruguay was real. The Chief Executive went back to his home city after the week of competition and things returned to normal.
The complainant was greatly upset by the thought of her personal photographs being taken by the Chief Executive in this manner and then disseminated to others.
The Chief Executive refers to deleting the photographs in emails but in submissions to the Workplace Relations Commission, indicates that he will submit them as evidence.
Business trips and gifts
The complainant outlined that she and the Chief Executive attended marketing conferences in New York, San Francisco, Costa Rica and Monaco. When they travelled, the complainant was not given the details of their flights or itinerary. The Chief Executive would only tell the complainant on the day of their flight that they were leaving that day. He also bought her gifts, for example a new iPhone X and a necklace from Tiffany’s. She explained to the Chief Executive that the gifts were over-generous and upset her. He went clothes shopping with the complainant, which she described as weird although she thought it was normal at the time. At the adjudication, the complainant had with her a bag of the clothes bought while working for the respondent.
In September 2018, the Chief Executive had a fight with the operations manager, who was dismissed. He fired the other workers, leaving the complainant to do all the roles. The respondent appointed a business coach, who spoke with the complainant and produced recommendations. The complainant was dismissed on the 13th October 2018 after taking a week of annual leave. She submitted that the dismissal was procedurally unfair and there were no substantive grounds. She had spurned the Chief Executive’s advances and he sought retribution by dismissing her. He held her need for a visa over her head. She asked how there could be a redundancy situation when the respondent referred to the job being left open. The complainant referred to the documentary evidence setting out her efforts to find alternative employment.
The complainant said that she was not paid for the first thirteen days of October and also had not been paid notice pay. She had not received pay slips during her employment. In respect of the Organisation of Working Time Act claim, the complainant said that she was often texted in the middle of the night. She had to reply and if she did not answer, the Chief Executive would keep sending messages.
In respect of the Employment Equality claim, it was submitted that this was serious and constant harassment of the complainant, who was in a vulnerable position and whose visa status was held over her.
Summary of Respondent’s Case:
The respondent did not attend the adjudication and nor was it represented. The Chief Executive made submissions on the 19th May 2019. He indicated that would not attend the adjudication. He said that he did not want to focus on the complainant’s negative attributes. He said that everyone around him shares in his wealth and the complainant shared in this too. He described the allegation of sexual harassment as unfair and referred to their travelling the world together. He acknowledged that while the manner of the dismissal was unfair, the complainant changed after her return from Brazil. He referred to holding the job open until January 2019. He referred to interpersonal difficulties between the complainant and the operations manager. He accused the complainant of engaging in a power play and she fired another colleague because of jealousy. He referred to the complainant as being aggressive and angry.
Findings and Conclusions:
This is a complaint pursuant to the Terms of Employment (Information) Act. Section 3 of the Act requires an employer to provide to an employee a statement of the terms of their employment. This must occur within two months of the commencement of the employment. The Act transposes an EU Directive and sets out information about the employment in question. The failure to provide a statement is a breach that subsists until the employment is terminated or a statement is provided. I find that the respondent did not provide the complainant with a statement as required by section 3. I award the equivalent of four weeks wage as redress for the breach, i.e. €2,708.33.
This a complaint pursuant to the Organisation of Working Time Act regarding working more than the maximum number of hours during the working week. The complainant explained that she received messages from the Chief Executive in the middle of the night or outside of work hours, which she had to address. Otherwise, the Chief Executive would keep texting her until she answered. This is reflected in the print outs with emails from the Chief Executive at the weekend (15th September 2018), in the evening (11th September 2018) or at 2.42am on a night in November 2017.
I find that the complainant has established a contravention of the Organisation of Working Time Act in respect of rest breaks. Given the importance of working time and rest, I award redress of €1,500.
This is a complaint pursuant to the Organisation of Working Time Act regarding annual leave. The complainant asserts that she had to answer messages from her employer while taking annual leave. The evidence indicates that the complainant had to work on issues as soon as they were raised, including while on annual leave. I find that there has been a contravention of the Act and award €500 in this regard.
This is a duplicate of the above Working Time claims and I therefore deem it not well-founded.
This is a complaint pursuant to the Unfair Dismissals Act. The complainant was dismissed on the 13th October 2018. Her employment commenced on the 5th September 2017. The onus rests on the respondent employer to show that the dismissal was not unfair. The letter of the 13th October 2018 states that the dismissal is because the Chief Executive has no choice because of what he and the complainant said over the last 10 days. This refers to a draft settlement agreement, which would be post-dated to allow the complainant say good-bye to friends, and to get a cheaper air fare to Brazil. It refers to the complainant as an inspiration. It states that the respondent would “tick the box that says this is because of Lack of Work right now” but says come back in January and “I will activate the visa again and hire you back”.
It is for the employer to show that there were substantive grounds for the dismissal and that it was procedurally fair. The respondent has clearly not established that the dismissal was grounded on a substantive ground provided by the Unfair Dismissals Act. The Chief Executive refers to their interpersonal dealings, but there is no suggestion of a disciplinary finding against the complainant. He alludes to there being no work but states that this is to “tick a box”. These grounds do not tally with the outcome of the management consultant’s review of the organisation, where she makes 13 recommendations on developing the respondent and augmenting the complainant’s role. Three days later, however, the complainant is dismissed.
I find that the respondent has not discharged the presumption that the dismissal was unfair. In reaching this finding, I note that the respondent has not shown substantial grounds to justify the dismissal. I note the complete absence of procedure in reaching the decision to dismiss the complainant, including that it flies in the face of the outcome of the management consultant process. I also note that the complainant made the role a success. She led high profile fashion events in Ireland and around the world, opening up business opportunities. This took place against the very difficult circumstances of the complainant having to manage and deflect the Chief Executive, as set out in the harassment complaint. The complaint of unfair dismissal is well-founded.
In assessing redress, I note the extensive efforts made by the complainant to find alternative employment. I award the complainant redress of €25,000 pursuant to the Unfair Dismissals Act.
This is a complaint of sexual harassment pursuant to the Employment Equality Act. Section 14A of the Employment Equality Act addresses sexual harassment and harassment on the other discriminatory grounds:
“(1) For the purposes of this Act, where —
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is —
(i) employed at that place or by the same employer,
(b) without prejudice to the generality of paragraph (a) —
(i) such harassment has occurred, and
(ii) either —
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated,
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.
(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
(7) (a) In this section —
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
Section 14A defines harassment. It must be unwanted conduct related to a discriminatory ground. The conduct must have the purpose or effect of violating a person’s dignity and create an offensive or humiliating environment. The section provides a defence for the employer who takes reasonably practicable steps to prevent the employee from being harassed. Where an employee has been treated differently in the workplace because of the harassment, it is a defence for an employer to show that they took reasonably practicable steps to prevent this differential treatment or to reverse its effect.
In respect of an employer’s vicarious liability, section 15 provides:
“(1) 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.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.”
Section 15 provides that it is a defence for an employer to show that it took reasonably practicable steps to prevent one employee’s harassment of the other.
The Code of Practice on Sexual Harassment and Harassment at Work (S.I. 208/2012) sets out steps for employers to prevent and address harassment in the workplace and between colleagues.
In assessing this case I follow the approach adopted in ADJ-00003616 (A Female Employee v A Café & Restaurant) (adjudication officer Niamh O’Carroll Kelly) in examining the legal issues in a complaint of harassment and the assessment of redress.
In this case, the complainant carried out duties relating to marketing and business development of a fashion-related enterprise. It is was a small organisation, and the complainant was based in one office while the Chief Executive lived in another city. The complainant led successful high-profile events in Ireland and developed fashion and other opportunities, here and abroad.
The complainant worked in an environment where she received unwanted attention and communication from the Chief Executive. Having reviewed the messages and emails, the Chief Executive’s communication to the complainant can be paraphrased as “you’re my inspiration / we’re not just colleagues / my home life is a drag.” The Chief Executive also uses sexual innuendo to solicit the complainant, especially late at night. This includes references to kissing and holding the complainant as well as waking up with her. This occurs amongst many over-the-top, emotive messages about growing the business and their relationship. The complainant was crystal clear in all her replies. Her response can be paraphrased as “I am not interested / let’s get on with work.”
This was the tenor of their interactions throughout the employment relationship. The complainant sought to get on with her job and manage the business, while also seeking to deflect the unwanted attention from the Chief Executive.
There are instances where the Chief Executive sought to manipulate the complainant as part of the sexual harassment. One significant event was the trip to Brazil, where the complainant travelled home on false pretences. It is no surprise that the complainant was angry and frustrated when she learnt that there was no business meeting on the margins of the Coldplay concert. They had travelled from Ireland to explore a business opportunity related to merchandising at large concerts. Instead of this being a work-related event, it was now a social event. This completely undermined the complainant’s efforts to keep their relationship on a professional level and this happened in her hometown. Even though the complainant was clearly unhappy with what happened in Sao Paulo, this is why the Chief Executive mentions Coldplay in later emails. Just mentioning the band is a way of again undermining the complainant and re-setting the relationship to one where he holds more power.
There are other examples of manipulation. When they travelled for business, the complainant would only know of the day of their departure on the very day they were leaving. The respondent was a fashion start-up. It would be no surprise if staff were given financial assistance to buy clothes. One would expect this to take the form of access to a debit card or a store account. Instead, the Chief Executive took the complainant to buy clothes and she was the only staff member for whom this happened. Having regard to all the circumstances, this is “weird”, and this was why the complainant brought the clothes to the adjudication. This was all about overwhelming the complainant and removing her agency and self-determination. Ditto for the Chief Executive’s unsolicited and unwanted communication with the complainant’s friend and her sister, as well as the offer to pay her air fare.
This is the background to how the Chief Executive came into possession of photographs from the complainant’ phone, including personal, intimate ones. This occurred in late 2017 but was only revealed to the complainant in March 2018. The Chief Executive makes this revelation into a meandering email about the business and his feelings for the complainant. He suggests that the complainant sent him the photographs. The complainant vehemently denied this, both in contemporaneous emails and at the adjudication. The Chief Executive also said that he disseminated the photographs to his ex in Uruguay. Extraordinarily, he suggests in an email that he wishes to submit them as evidence for this WRC adjudication (they were not submitted).
Having considered the evidence, I find as fact that the Chief Executive hacked the complainant’s phone while it was in his possession. He downloaded photographs from the phone, without the complainant’s consent. He viewed them but did not tell the complainant for several months. In reaching this finding, I note that the Chief Executive is an IT expert; his other businesses are in IT and according to him, they are very successful. I note the complainant’s uncontradicted evidence of the distress this caused. I note her immediate and direct challenge to the Chief Executive in the March 2018 emails. She does not engage with the other issues raised by the Chief Executive but repeatedly challenges him on how he has possession of her photographs. He ends the chain by saying that they are destroyed, but it is apparent from his April 2019 email to the WRC that they remain in his possession.
Leaving aside the obvious criminal law dimension, the Chief Executive’s actions are odious and egregious. He knowingly downloaded photographs from the complainant’s phone and kept them in his possession. He revealed this fact at a time when he could exert most pressure on the complainant. This was when they were working together on a busy national event (they normally worked in different cities). They worked long hours during this week and the Chief Executive drove the complainant home. It is after this that he refers to having the photographs. He sends further long emails to the complainant about selling the business and their relationship. She replies only about the photographs and having to get through the week. She was obviously distressed and concerned about the photographs. Clearly, the hacking and dissemination of the photographs in these circumstances violated the complainant’s dignity at work in the most egregious way.
I find that the respondent is vicariously liable for the actions of the Chief Executive. I note that the Chief Executive was the most prominent figure within the respondent. There is no evidence of any reasonably practicable steps taken by the respondent to prevent the harassment. The evidence points in the opposite direction. I note the evidence of something akin to Stockholm Syndrome amongst other staff members; a female employee of the parent company lashes out at the complainant in an email sent after the dismissal, blaming the complainant for everything.
Given this finding, I award redress at the maximum level permissible by the Employment Equality Act. Pursuant to section 82, I award redress equivalent to 104 weeks of remuneration. This award is justified given the serious and persistent contravention of the Employment Equality Act, i.e. persistent sexual harassment that culminated in the odious hacking and dissemination of the complainant’s photographs. This award is also intended to be effective, proportionate and dissuasive. This is an award of €64,999.92 and is not an award of pay and therefore not subject to tax.
Pursuant to section 82, I order that the respondent take the following course of action: that it immediately destroys all photographs or images that depict the complainant or belong to her.
This is a complaint of victimisation pursuant to the Employment Equality Act.
In Department of Defence v Barrett (EDA 1017), the Labour Court stated as follows in respect of victimisation:
“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”.
That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -
1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
2. The Complainant was subjected to adverse treatment by the Respondent, and,
3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”
I note that the Chief Executive emphasised the complainant’s need for a work permit for employment in Ireland. He stated that the work permit obtained under the auspices of the respondent would expire. I note that the Chief Executive also suggested he would submit the complainant’s photographs to the WRC as part of this case. While reprisals relating to the work permit or the photographs could amount to adverse treatment, he did not follow through on any suggested reprisal. The complainant did not incur detriment and this element of the claim is not made out.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
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 find that this complaint pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €2,708.33.
I find that this complaint pursuant to the Organisation of Working Time Act is well founded and the respondent shall pay to the complainant redress of €1,500.
I find that this complaint pursuant to the Organisation of Working Time Act is well founded and the respondent shall pay to the complainant redress of €500.
This is a duplicate Organisation of Working Time complaint and I formally deem it not well founded.
For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and I award redress of €25,000.
I find that the complainant has established a prima facie case of discrimination in the form of harassment and the respondent has not rebutted the inference of discrimination.
I order the respondent pay to the complainant €64,999.92 in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).
I order the respondent to immediately destroy all photographs or images that depict the complainant or belong to her.
I find that the complainant has not established a prima facie case of victimisation and I deem this element of the claim to be not well founded.
Dated: November 25th 2019
Workplace Relations Commission Adjudication Officer:
Employment Equality Act / sexual harassment
Personal photographs / redress / order pursuant to section 82