ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027049
Parties:
| Complainant | Respondent |
Anonymised Parties | A Catering Worker | A Catering Chain |
Representatives | Richard Grogan, Solicitor of Richard Grogan & Associates | Fiona Egan of Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00034621-001 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00034621-002 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034621-003 | 05/03/2020 |
Date of Adjudication Hearing: 28/09/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Supplementary materials first introduced at the Hearing.
A large booklet of supplementary papers supporting the Respondent’s Written statement, which had been already received in the WRC was presented on the day of the Hearing. Neither the Adjudicator nor the Complainant’s Legal Advisor had prior sight of the booklet.
I decided to exclude the Booklet from evidence as the clear basis of the Parties cases were already set out in their earlier Written Submissions and would be amplified in their Oral presentations.
On this basis I deemed that there was adequate evidence, already presented, to consider the case.
Background:
The issues in contention concern the alleged Gender Discrimination and Sexual Harassment, together with Holiday Pay and Contractual Information complaints, of the Complainant while employed in a Coffee Shop. The employment was from July 2017 to the 7th February 2020. |
1: Summary of Complainant’s Case:
1:1 CA: 00034621-001 Terms of Employment (Information) Act, 1994 The Contract of Employment did not comply with Section Three of the Terms of Employment (Information) Act, 1994 and SI 49 of 1998, Terms of Employment (Additional Information) Order ,1998. This latter instrument requires details of Rest and Break periods under Sections 11,12 and 13 of the Organisation of Working Time Act,1997. Furthermore, no details were contained in the Employment Contract regarding the requirements of Sections 21 (Gender Equality) and Section 30 (Non-Gender Equality) of the Employment Equality Act,1998. A landmark European Court of Justice case c-350/99 Lange -v- Scheunemann 2001 ECRI-1061 was referred to in support. 1:2 CA- 00034621-002 Employment Equality Act, 1998 The Complainant alleged that she had been discriminated against under Section 6 of the EE Act,1998 on the grounds of her Gender - Female- in being Sexually Harassed; Section 8, Discrimination under Conditions of Employment and Section 14(A) - Sexual Harassment. The facts alleged were that on the night of the 7th December 2019 the Complainant’s Manager, Mr. XA, posted on a Web Group Chat, which included the Complainant, a picture of himself wearing only his boxer shorts. He made suggestive sexual comments regarding the boxer shorts. On the 9th December Mr. XA also posted to the Group Chat an image of male genitalia on a flat white Coffee Cup top. The Complainant found both images quite disgusting and most upsetting. Her Representative pointed out that the Complainant was, after all, a young lady of only 19 years of age. Images of both Web Texts were presented in evidence. When she reported the incidents to the Respondent, the Area Manager, Ms XB, suggested, at a meeting on the 24th of January 2020 that she move to a different Branch of the Chain. The Complainant interpreted this as a further discrimination as she was being asked to move rather than the alleged perpetrator. She found the stress of the entire situation too much and took sick leave on Stress Grounds on the 22nd of January and resigned from the Respondent on the 4th February. Her Representative emphasised the degree of upset that had been caused to a young lady and sought exemplary redress. Considerable Legal precedent emphasising the need for Preventative Sexual Harassment procedures which were clear cut and properly communicated to all staff as well as being properly implemented was quoted by the Complainant’s Legal representative. S.I. No 208 of 2012 -Code of Practice Harassment Order was also quoted in support. 1:3 CA-00034621-003 Organisation of Working Time Act, 1997 The Complainant did not receive her correct Holiday Pay on leaving the employment. |
2: Summary of Respondent’s Case:
2:1 CA: 00034621-001 Terms of Employment (Information) Act, 1994 The Respondent outlined the requirements of Section Three of the above Act and in detail demonstrated their compliance with same in proper documentary form. Regarding Sections 21 and 30 of the Employment Equality Act ,1998 the Employee Handbook and other Employment documentation adequately covered these issues. The Information complaint was resolutely denied. 2:2 CA- 00034621-002 Employment Equality Act, 1998 The Complainant alleged Gender Discrimination and Sexual harassment relating to incidents which occurred on the 7th and 9th December 2019. The Respondent accepted that they had Vicarious Liability for the actions of the staff concerned. However, the incidents were never brought to their attention until the 21st of January 2020, some six weeks later. An immediate investigation was initiated. The Area Manager, Ms XB, immediately contacted the Complainant and a meeting was arranged for the 24th January. The Complainant had gone on Sick Leave for Stress from the 22nd January to the 10th of March 2020. It was clear to the Respondents that the monthly Quality Oversight meeting on the 21st of January between the Complainant and her Manager, Mr. XA, had not gone well. It was only after this meeting that the complaints against Mr. XA, were surfaced. Ms. XB, the Area Manager offered the Complainant several options regarding the handling of the allegations. One of these options was a transfer to another Branch of the Company while the investigation progressed. This was not in any way a punitive step as the Respondent had several Branches equidistant to the Complainant’s home in West Dublin. The Complainant indicated that she wished for a full formal investigation which was arranged for the 11th March, the date of her return from Sick Leave. However, the Complainant resigned her position on the 4th February. She was contacted by the HR Office, Ms XC, and asked to reconsider. The Complainant declined to reconsider her resignation and instead informed the Respondent that she was withdrawing her complaints’ against Mr. XA. This all took place verbally and the only evidence is the recollection of Ms.XC. None the less the Respondent continued with an investigation. Mr. XA admitted sending the contested Text and images. A full Disciplinary meeting took place with Mr. XA on the 22nd February. Mr. XA was demoted from his Manager position and reassigned at a lower rank to another Branch of the Chain. The Respondent strongly argued that they had taken immediate action, once notified on the 21st of January, and despite the Complainant’ withdrawal from the process on the 4th February, had professionally dealt with the situation. A letter from the Complainant’s Legal Representative on the 4th March indicting a willingness to participate in a formal process arrived post factum. The investigation of Mr. XA and Disciplinary penalty had concluded at this stage and nothing further would be served by re opening matters. In their defence the Respondent pointed to Section 14 A (2) of the EE Act,1998 and to S.I. No 208 of 2012 -Code of Practice Harassment Order in making their argument that they had done everything that was “Reasonably Practical” to address the situation once it came to their notice. The actions taken were also “Preventative” in nature as required in case law quoted – A Hotel v A Worker EDA 15/2009. As the Complainant had left their employment there was nothing that they could do to “reverse” the impact of the Harassment. In Legal Argument the Respondent pointed to the Burden of Proof sections of the EE Act,1998 – Section 85 A (1) where the implication is that a first requirement of the Complainant is to establish a prima facie case that Discrimination and or Harassment actually took place. The Respondent felt that this critical element was lacking in the case. The incidents took place on the 7th and 9th of December. Nothing untoward seemed to have arisen between the parties (Mr XA and the Complainant) following this – the relationship remained good until the performance review of the 21st January 2020. The Respondent queried why, if the degree of upset was as claimed, the Complainant had not raised the issue in her regular meeting with the Area Manager, Ms. XB, on the 13th of January and had waited until the 21st January. The behaviour complained of was completely unprofessional of a Manager but was done in the context of Webchat Group involving Males and Females, was never repeated and was not the subject of any other complaints from other, potentially impacted, staff members. The Respondent referred to the European directive on Dignity at Work Article 2 regarding the issue of the “persistency” of the behaviour. It was a regrettable but not a persistent action and it was very unclear as to how offensive the Complainant actually found the incidents seeing that she only raised the issue some six weeks afterwards. She had had an opportunity to raise the issue at a regular meeting with MS. XB on the 13th January but had not done so. The issue only came to light following the contested Audit meeting on the 21st January conducted by Mr. XA. and while not in any way condoning or excusing the actions the Respondent queried how realistic the Complainant was in her suggestions of being “seriously offended” in December. In summary the Respondent argued that once notified they moved decisively to address the issue and as the Complainant had by this stage resigned there was little more, they could do. They had acted as per Section 14 A (2) as “reasonably and practicably” as possible. The allegation of Harassment and Discrimination lacks a good evidential basis, Section 14 A (2) applies in the Respondent’s favour and the Complaint should be dismissed. 2:3 CA-00034621-003 Organisation of Working Time Act, 1997 – Holiday Pay It was accepted that a Payroll Administrative error had occurred here. It was corrected as soon as it became known and the Complainant was paid her outstanding monies as soon as possible.
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3: Findings and Conclusions:
3:1 CA: 00034621-001 Terms of Employment (Information) Act, 1994 3:1:1 The relevant Law Section 3 of the Terms of Employment (Information) Act, 1994 is the critical piece of legislation here supported in this case by S.I 49 of 1998 Terms of Employment Additional information Order ,1998 and Sections 21 and 30 of the Employment Equality Act,1998. 3:1:2 Consideration of the Evidence presented. In Respondent evidence it was clear that the Company was a well-run professional Organisation with good HR Procedures and Paperwork. Section 3 of the Act was complied with to a high degree, although some of the points of S.I. 149 of 1998 were possibly in doubt, more due to differing interpretations that any wilful disregard. Like wise the inclusions of the EE Act,1998 Section 21 and 30 in Employee contracts was more by way of inference than any direct references. 3:1:3 Conclusions Section 7(2) of the Terms of Employment (Information) Act, 1994 provides, as set out below. Complaint to adjudication officer under section 41of Workplace Relations Act 2015
7: (2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C]shall do one or more of the following, namely— ( a) declare that the complaint was or, as the case may be, was not well founded, ( b) either— (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under F22 [section 3, 4, 5, 6or 6C], or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, ( c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, ( d) in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)]order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.
Accordingly, and following the reasoning set out in Section 3:1:2 above of this Adjudication I deem that the Complaint is well founded but at the very lower level of infraction of the Legislation. Under Section 7:2: (d) of the Terms of Employment (Information) Act, 1994 a redress award of € 100 is made in favour of the Complainant.
3:2 CA- 00034621-002 Employment Equality Act, 1998
3:2:1 The relevant Law / Requirements of the Burden of Proof.
The relevant law is the Employment Equality Act,1998 (EE Act,1998) supported by the Codes of Practice on Sexual Harassment at Work and relevant European Directives.
Of relevance are Sections 6, 8, 14 A and Section 17 of the EE Act, 1998. There is also a considerable body of Legal case law in this area -much of which was quoted by both Parties in this case.
Section 85 A of the EE Act,1998 defines the Burden of Proof requirements as Burden of proof. 85A 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. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the F153 [ Director General of the Workplace Relations Commission ] under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary. (4) In this section ‘ discrimination ’ includes — ( a ) indirect discrimination, ( b ) victimisation, ( c ) harassment or sexual harassment, ( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.
In plain English this requires the Complainant to establish a “prima facie” case worthy of investigation and the onus then shifts to the Respondent to rebut or disprove. From a review of the evidence presented I was satisfied that a prima facie case existed and allowed the complaints to proceed. However, all cases rest on their own evidence and I will consider this next. 3:3 Consideration of the Evidence presented, and key questions raised. 3:3:1 Was there proof of Discrimination and Sexual Harassment.? The images on Social Media from the 7th and the 9th of December were clearly a case of Sexual Harassment. This was accepted by the Respondent. Whether the Harassment amounted to Gender Discrimination (as claimed) directed against the Complainant was a less clear issue. The Text/Video Messages were sent to a wide group of staff of mixed Genders and not specifically to the Complainant is an argument in the Respondent’s favour. My conclusion is that technically Sections 6 and Section 8 of the Act were not contravened on a solely Gender specific manner. However, Section 14 A – Sexual Harassment - clearly was. 3:3:2 Accepting that there was an issue of Sexual Harassment has the Respondent a good defence under Section 14 A (2)? (quoted below.) 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.
In the Respondent’s favour is the fact that once notified on the 21st January 2020 immediate steps were put in place to investigate and address the issues. This culminated in a severe sanction for Mr.XA. even though the Complainant verbally withdrew her Complaint to Ms XC, the HR Administrator on the 4th February 2020. The Respondent actions were clearly of a nature to prevent any reoccurrence of the incidents. The Resignation of the Complainant effectively removed any opportunity for the Respondent to internally, within the Organisation, seek to remedy any upset or offence that she had suffered. It is worthy of note that the Respondent stated that they had asked the Complainant to reconsider her resignation. The only problematic issue is that the Harassment took place and post incident actions, while admirable, are it could be said “bolting the door after the horse has left”. in A Hotel and a Worker Labour Court Determination EDA0915, 2 July 2009: The Labour Court stated that measures to address Sexual Harassment should be “The obligation is preventative in nature and it is not sufficient for an employer to show that measures were taken to prevent a reoccurrence of harassment after it had taken place. 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. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations.” In Oral evidence it appeared that local Management which would include Mr. XA, the alleged perpetrator, and the Area Manager Ms XB had never received any formal training in how to address Sexual Harassment. It was a new area for her, Ms. XA, which she felt had always, prior to the incident, been the remit of the professional HR Department.
It was noted that the Respondent had recently commissioned a HR consultancy firm to conduct a Companywide training programme in this area.
However, I did also note that the Complainant waited some six weeks before raising any complaints even though she had met Ms XB on the 13th January and the complaints followed from a difficult Audit meeting with Mr. XA on the 21st January. In her favour, in this context, was the fact that her GP had certified her as suffering from Stress with effect from the 22nd January to the 10th of March.
3:4 Conclusion CA- 00034621-002 Employment Equality Act, 1998
In conclusion and after considering all the evidence I came to the conclusion that while the Respondent had been admirable in the post incident actions they had erred in the preventative stage. Being a large employer of staff of mixed Genders and Nationalities an oversight in providing Training and Awareness in this area was a management weakness.
Some redress, at the lower levels of award, is due to the Complainant for suffering the Sexual Harassment.
The level of compensation is deemed to be appropriate is roughly €3,500 or approximately 12 weeks’ pay as stated on the complaint form.
3:5 CA-00034621-003 Organisation of Working Time Act, 1997 / Holiday Pay From the evidence presented I accepted that the Holiday Pay issue had been an administrative oversight and had been corrected. Accordingly, I did not deem the complaint to be well founded.
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4: Decision:
Section 41 of the Workplace Relations Act 2015 ; Section 7 of the Terms of Employment (Information) Act 1994 ; Section 27 of the Organisation of Working Time Act, 1997 and Section 79 of the Employment Equality Acts, 1998 - 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
4:1 CA: 00034621-001 Terms of Employment (Information) Act, 1994
The complaint is well founded on largely technical grounds. A Compensation sum of €100 is awarded in favour of the Complainant.
4:2 CA- 00034621-002 Employment Equality Act, 1998
The complaint of Sexual Harassment of the Complainant is deemed to be proven and legally well founded. As provided for under Section 82 of the EE Act,1998 I award compensation in the amount of € 3,500 to the Complainant.
The complaints of Discrimination solely on the grounds of Gender, Section 6 and Conditions of Employment -Section 8, I did not find well founded.
4:3 CA-00034621-003 Organisation of Working Time Act, 1997
I did not deem this complaint to be well founded and I set it aside.
4:4 Taxation
The Redress amounts awarded are for Compensation for wrongs suffered and not in any way related to Renumeration. The advice of the Revenue Commissioners may be sought in considering these matters.
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Dated: 20th October 2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Sexual Harassment , Preventive Measures, Section 3 information |