FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : SUPERMACS IRELAND LIMITED (REPRESENTED BY GAFFNEY SOLICITORS) - AND - SARAH RYAN (REPRESENTED BY LARS AMUSSEN B.L., INSTRUCTED BY SEAN ORMONDE & CO SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision NoS: ADJ-00005019 CA-00007095-002 In this Decision Ms Ryan is referred to as the Appellant and Supermacs Ireland Limited is referred to as the Respondent. The Adjudication Officer found that the Appellant was not discriminated against and that she had not been victimised within the meaning of the Act. The Appellant was employed by the Respondent from March 2015 until the termination of her employment in September 2016. Background The Appellant contends that she had been the subject of sexual harassment by a supervisor, Mr A, on 23rd February 2016. She further contends that she had been discriminated against on grounds of her gender in an incident associated with cleaning of a customer area on 26thMarch 2016. Her Trade Union wrote to the Respondent on 12thMay 2016 advising the Respondent that the Appellant had a number of grievances against the Respondent including as regards sexual harassment. The Appellant contends that her working hours were reduced in week ending 22ndMay 2016 and week ending 29thMay 2016 and that these reductions were an act of unlawful victimisation in response to the letter issued by her Trade Union on 12thMay 2016. The Appellant herself wrote to the Respondent on 26thMay 2016 setting out a complaint of sexual harassment against her manager, Mr A, as well as complaints in respect of a range of other matters including an allegation of discrimination which she alleged occurred on 27thMarch 2016. An investigation of the Appellant’s complaint was initiated by the Respondent. That investigation resulted in a set of findings by Ms JG, a manager of the Respondent. Ms JG did not uphold the complaint of the Appellant and concluded that her allegations appeared to be “without foundation whatsoever”. In a letter setting out her conclusions dated 30thJune 2016, Ms JG advised the Appellant of her right of appeal and of the contact details of the person to whom an appeal could be made. In that letter Ms JG also advised the Appellant that she was sending all of the papers associated with the matter to a HR manager of the Respondent so that she would decide whether or not the Appellant’s allegations may be of a ‘spurious, malicious and/or insincere nature justifying disciplinary action being taken against’ the Appellant. The Appellant did not appeal the decision of Ms JG as regards her complaints of sexual harassment and victimisation. The Appellant contends that this final element of the letter dated 30thJune amounted to unlawful victimisation of her for having made allegations of sexual harassment and other discriminatory acts. The Appellant had, prior to the completion of Ms JG’s investigation, been medically certified as unfit for work from 17thJune 2016 to 22ndJuly 2016. On the 29thJuly 2016, she resigned her employment. The Appellant contends that she was discriminatorily constructively dismissed from her employment. Preliminary matter. The Appellant’s complaint was made to the Workplace Relations Commission on 20thSeptember 2016. The Respondent submitted that any complaint of sexual harassment, discrimination or victimisation which referred to an act which is alleged to have occurred outside the time limits set out in law for the making of complaints falls outside the jurisdiction of the Court. It was submitted that, the Complaint having been made on 20thSeptember 2016, the cognisable period for the complaints comprising the within appeal is 21stMarch 2016 to 20thSeptember 2016. Mr Asmussen, on behalf of the Appellant, confirmed to the Court that he was making no application for an extension of the statutory time limits for the making of an appeal, but rather he was submitting that all events occurring from 23rdFebruary 2016 should be regarded as a continuum or regime of unlawful discrimination and consequently within the jurisdiction of the Court to consider and decide upon in the within appeal. Section 77(5) of the Acts provides: - (a) 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. (b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly. Section 77(6A) provides: -For the purposes of this section — (a) discrimination or victimisation occurs— (i) if the act constituting it extends over a period, at the end of the period, The Court, inCork County VEC v Hurley (EDA 24/2011),considered a contention that events which occurred outside the cognisable period for the complaint made could, in accordance with the Act at Section 77(6A), be considered as part of a regime or continuum and thus within the jurisdiction of the Court. The Court in that case decided:- ‘that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences were found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.’The Court therefore, consistent with its approach inCork County VEC v Hurley, must first consider whether or not an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether or not events outside of that period can be considered to be part of a continuum or regime of discrimination and consequently within the jurisdiction of the Court. Summary position of the Appellant as regards alleged events occurring within the cognisable period The Appellant submitted that she had been the subject of discriminatory treatment on 26thMarch 2016, victimisation in week beginning 22ndand 29thMay 2016, victimisation on 30thJune 2016 and constructive discriminatory dismissal on 26thJuly 2016. Alleged discrimination on 27thMarch 2016. The Appellant submitted that close to the end of her shift on 26thMarch 2016 she was asked by a supervisor to clean a customer area. She said that she was close to the end of her shift and consequently she would not have enough time to do the job. She was informed that she could either clean the area or be issued with a written warning. She reluctantly agreed to under protest to do the job. However, when she went to the area she saw that there was a lot of customers still eating in the area which meant that she would be unable to clean it. The manager who she has contended sexually harassed her on 23rdFebruary 2016, Mr A, also went to the area and saw that there were customers eating. She submitted that the manager said to her that she would not have time to clean the area and so she could go early or stay and wait to finish the job. She opted to go early. On arrival at work on the following day, the 27thMarch, the Appellant was issue with a written warning by Mr A. No fair procedures were followed. While administering the pre-prepared warning he spoke to the Appellant in an aggressive and threatening manner. This treatment was a direct result of her earlier rejection of Mr A’s sexual harassment. Alleged victimisation on weeks beginning 22ndand 29thMay 2016 The Appellant submitted that her hours of work were reduced from 35 hours in week beginning 15thMay 2016 to 22 hours in week beginning 22ndMay and 20 hours in week beginning 29thMay. She submitted that her Trade Union had, on 12thMay 2016, submitted a request for information under Section 77(6) of the Act and in that letter had notified the Respondent of ‘a number of grievances’ and that ‘one of the issues was sexual harassment’. She submitted that Mr A reduced her hours in each of the two weeks as a result of that communication and that this act constituted victimisation within the meaning of the Act. The Appellant submitted data which listed her weekly hours in each week from week beginning 14thFebruary 2016 as follows: 28, holidays, 26, 27, 23, 31, 30, 29, 23, 26, 24, 25, 29, 35, followed by weeks beginning 22ndand 29thMay. Alleged victimisation on 30thJune 2016The Appellant submitted that following an investigation, which commenced on 2ndJune 2016, by Ms JG into the Appellant’s complaint of sexual harassment and other complaints against Mr A made on 26thJune 2016, Ms JP wrote to the Appellant on 30thJune 2016 stating that she could not uphold her allegations as there was no third party corroboration or other evidence. Ms JG also stated that considerations would be given as to whether disciplinary action would be taken against the Appellant for having lodged her grievance. The Appellant submitted that the investigation into her complaint was flawed in terms of its conduct. The Appellant was shocked and dismayed by the conclusions of the investigator, Ms JG, and by her assertion that papers would be passed to another manager who would give consideration to the possibility of disciplinary action against her. She submitted that the threat of disciplinary action amounted to victimisation within the meaning of the Act. Alleged constructive discriminatory dismissal on 29thJuly 2016 The Appellant submitted that she felt demeaned and humiliated by the conduct of the investigator, Ms JG, towards her. She found her attitude in investigating the matter to be hostile and unfair. She was not shown relevant CCTV footage and was treated differently to the manner in which others were treated in the course of the investigation. She submitted that, in the case of two colleagues who were interviewed as part of the investigation, they were offered a meal while the Appellant had not. Relevant individuals were not interviewed by Ms JG according to the Appellant’s submission. She was devastated to receive Ms JG’s letter dated 30thJune which indicated that her allegations were not being upheld and that disciplinary proceedings against her would be considered. After a medically certified absence of three weeks from work she came to the realisation that she would be returning to a potentially abusive environment in which her employer had not only failed to protect her, but had threatened her for raising the issue of discrimination and sexual harassment. She submitted that this realisation brought her to the inescapable conclusion that she could not return to work. She resigned her employment on 29thJuly 2016 and contended that this amounted to constructive discriminatory dismissal. Summary testimony of the Appellant in relation to events allegedly occurring in the cognisable period On 26thMarch when she was nearly finished her shift, she was asked by M, a supervisor, to clean a customer area. She responded that she would not have time for that job. M came back and told her that she should do the job or she would be issued with a warning. When she went to the area there were customers still eating, Mr A came up to the area and told her she could stay and complete the job or go home early. She thought she had an understanding with Mr A. However, when she attended for work on the following day, she was presented with a written warning by Mr A which had been prepared before she arrived for work. No proper investigation was carried out prior to the issue of the warning, and she was afforded no right to representation at the meeting where the disciplinary sanction was issued to her. She was not advised of a right to appeal the sanction. She believed that the issuing of the sanction arose from earlier events commencing with the harassment of her by Mr A on 23rdFebruary including the fact that she refused a lift from Mr A on an occasion following the harassment. Her trade union wrote to the HR department of the Respondent on 12thMay 2016 and made the Respondent aware of her grievance as regards sexual harassment and in the following week her working hours were reduced to 20. She was a full-time employee and her hours dropped to 20. She believes that Mr A told all managers of the letter from her Trade Union. She herself made a comprehensive complaint to the respondent on 26thMay 2016. Her complaint of 26thMay was investigated by Ms JG. Ms JG did not interview a key witness who was present on the occasion of the alleged sexual harassment in February 2016 and she never met with the Appellant to discuss the outcome of the investigation. She felt that the final paragraph of Ms JG’s findings amounted to a threat of disciplinary action, and she felt that she was being punished for making a complaint against Mr A. The investigation was not conducted in accordance with the policies of the Respondent and was flawed. She felt as a result that she was not being protected by her employer. She felt that the report of Ms JG effectively made her out to be a liar and she felt she could not go back to work. She did not trust the Respondent as a result of this experience and that is why she made no appeal of the outcome of the investigation conducted by Ms JG. Under cross examination on behalf of the Respondent, the Appellant agreed that the level of hours offered to her in week beginning 22nd May and 29thMay were not dissimilar to the level of hours she worked in certain weeks in March, April and May 2016. However, she felt that her hours should have increased during May and afterwards. She agreed that she was rostered for 39 hours work in the week beginning 5thJune 2016. She agreed that she had refused to clean the customer area when asked to do so by a supervisor on 26thMarch. She agreed that the supervisor advised her that if she refused to carry out this work she would receive a warning and that she agreed to do the work at that point. She stated that these events occurred at approximately 4.30pm on the day. She stated when questioned that the work involved was of approximately one hour to one and a half hour’s duration. She also agreed that she would have been rostered to finish work at 7.30pm on the day in question. She said in response to a question that she did not walk out of her job on 26thMarch 2016 but rather Mr A had given her permission to do so. She said that she did not appeal the investigation findings of Ms JG because she did not trust the Respondent to handle the appeal. When questioned by the Court for clarification she agreed that she was represented by her Trade Union on the date she resigned from her employment. She was not able to clarify to the Court why there was an issue as regards availability of time to carry out the cleaning task on 26thMarch 2016 given that she had accepted in evidence that she was asked three hours prior to the end of her rostered shift, to carry out work which would take up to one and half hours. Summary position of the Respondent as regards events allegedly occurring in the cognisable period The Respondent submitted that the Court could take the decision of the Adjudication Officer as the defence of the Respondent to the appeal. The Respondent asserted in oral submissions that the Appellant had not been discriminated against on 26th March 2016 and that the occurrences on that date and the following day reflected the Appellant’s refusal to carry out an instruction of her supervisor. The Respondent submitted that any change in the working hours of the Appellant in weeks beginning on 22nd and 29th May 2016 was not unusual by reference to the fluctuation of the working hours of the Appellant generally. It cannot therefore be asserted that the fluctuation which occurred in those weeks was any form of victimisation of the Appellant arising from the making of a complaint of sexual harassment. The Respondent submitted that the report of Ms JG following her investigation reflected the written policy of the Respondent which states that individuals making malicious complaints of sexual harassment against a colleague are liable to disciplinary action up to and including dismissal. The Respondent submitted that the Appellant resigned her employment and that she had not appealed the outcome of the investigation carried out by Ms JG despite being advised of the means for making of an appeal. In those circumstances, the Appellant could not reasonably contend that she was constructively dismissed. Relevant Law The Act at Section 85A provides as follows: 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 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. Section 6 of the Act in relevant part provides 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which — (i)exists, (ii)(ii) existed but no longer exists, (iii)(iii) may exist in the future, or (iv)(iv) is imputed to the person concerned, (b) a person who is associated with another person — (i)is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii)(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. Discussion and conclusions of the Court as regards events allegedly occurring in the cognisable period. The Appellant has made a series of allegations as regards events allegedly occurring on a range of dates. Section 85A of the Act provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant. As was pointed out by this Court inDetermination EDA0821, Kieran McCarthy v Cork City Council, at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. The Court, in this decision, has considered each allegation made by the Appellant as follows: Matter arising on 26th and 27thMarch 2016. In her submission to the Court on this matter the Appellant contended that, close to the end of her shift, she was asked by a manager to clean a customer area. She said that she refused to carry out that task because she was close to the end of her shift and would exceed her shift hours were she to carry out the task. She said that the manager (first manager) advised her that if she did not carry out the task, she would receive a warning. She then agreed to carry out the task ‘under protest’. She testified that when she arrived in the customer area a number of customers were eating. She said that another manager (second manager), against whom she subsequently made allegations of sexual harassment, arrived and told her that she could carry out the task or leave early. She testified that on the following day, upon her arrival into work, the second manager issued her with a warning and spoke aggressively to her in doing so. She said that whereas the second manager had previously sexually harassed her in February 2016, she thought she had an understanding with him as regards her early departure from work on the 26thMarch. She said that the subsequent issuance of a warning to her was in retaliation for her rejection of his sexual harassment of her and her unwillingness to accept a lift home from work or to share a smoking break with him subsequently. Under cross examination by counsel for the Respondent, she agreed that she was rostered to work until 7.30pm on the day in question. She also agreed that the instruction to clean the customer area was issued at approximately 4.30pm and that the task would require approximately one to one and a half hours to complete. The Appellant is under the initial burden of establishing facts from which it could reasonably be inferred that discrimination had occurred. The Court notes that the Appellant contradicted herself in testimony as regards the basis for her refusal to carry out an instruction of a manager. I n her direct evidence she stated that the matter arose because she was asked to carry out a task at a time when the end of her shift was approaching. In her evidence under cross examination however, she set out a timeline which undermines the proposition that she initially refused to carry out an instruction issued to her by her manager because of unavailability of time in her shift. Similarly, the timeline ultimately set out in evidence by her raises fundamental issues of credibility as regards her account of the behaviour on the 26thand 27thMarch of the manager about whom she subsequently made a compliant of sexual harassment. In all of the circumstances, the Court concludes that the Appellant has not established facts from which an inference of discrimination could reasonably be drawn. Alleged victimisation on weeks beginning 22ndand 29thMay 2016 The Appellant submitted that following the issue by her Trade Union of a request for information to the Respondent under the Employment Equality Acts her hours of work were reduced from 35 hours in week beginning 15thMay 2016 to 22 hours in week beginning 22ndMay and to 20 hours in week beginning 29thMay. She submitted that her Trade Union had, on 12thMay 2016, submitted a request for information under Section 77(6) of the Act and in that letter had notified the Respondent of ‘a number of grievances’ and that ‘one of the issues was sexual harassment’. The Appellant submitted data which listed her weekly hours in each week from week beginning 14thFebruary 2016 as follows: 28, holidays, 26, 27, 23, 31, 30, 29, 23, 26, 24, 25, 29, 35, followed by weeks beginning 22ndand 29thMay. The Respondent submits that the pattern of working of the Complainant fluctuated considerably in the normal course and that the pattern of working in the two weeks concerned was not out of the ordinary.The Court has examined the pattern of fluctuation of the working hours of the Appellant over the period from February to June 2016. The Court notes that the level of hours worked by the Appellant in the weeks beginning 22ndand 29thMay is broadly consistent with the level of hours worked by her in at least three other weeks over the period. Noting that the Appellant agrees that she worked for 39 hours in the week following the two weeks when she contends she was victimised, the Court concludes that Appellant has not established primary facts from which an inference of discrimination could reasonably be drawn. Alleged victimisation on 30thJune 2016 The Appellant submits that following the completion of an investigation which was conducted into her allegation of sexual harassment, she was threatened with disciplinary action. She contends that this threat of disciplinary action constituted victimisation within the meaning of the Act. It is common case that the policy of the Respondent under which the complaint of sexual harassment was made by the Appellant, advises that individuals making malicious complaints of sexual harassment against colleagues are liable to disciplinary action up to and including dismissal. It is also common case that the investigator appointed to investigate her compliant stated in her final report that it was her ‘intention to furnish a complete copy of all statements and minutes of meetings to my colleague’ CO’S, ‘HR Manager for the Supermac’s Hotel Group.’ Ms O’S ‘will then decide whether or not such allegations may be of a spurious, malicious and / or insincere nature justifying disciplinary action being taken against you’. The Respondent submits that the investigator was doing no more than acting in accordance with the stated policy of the Respondent. The Court notes that the Appellant has alleged that the investigation conducted into her allegations of sexual harassment which concluded that her allegations appeared to be“without foundation whatsoever” was fundamentally flawed. It is the investigator’s statement in her letter of findings as regards potential disciplinary action however which she submits constitutes victimisation within the meaning of the Act. The Court notes that no disciplinary action was instituted against the Appellant and that the statement of the investigator, while strongly expressed, was consistent with provisions under which the complaint of sexual harassment was made. In those circumstances, the Court concludes that the Appellant has not made out her complaint that she was victimised within the meaning of the Act on 30thJune 2016. Alleged discriminatory dismissal. The Appellant submitted that she was devastated to receive Ms JG’s letter dated 30thJune which indicated that her allegations were not being upheld and that disciplinary proceedings against her would be considered. After a medically certified absence of three weeks from work, she came to the realisation that she would be returning to a potentially abusive environment in which her employer had not only failed to protect her, but had threatened her for raising the issue of discrimination and sexual harassment. She submitted that this realisation brought her to the inescapable conclusion that she could not return to work. She resigned her employment on 29thJuly 2016 and contended that this amounted to constructive discriminatory dismissal. She said that she did not appeal the findings of Ms JG’s investigation because she did not trust the Respondent to handle the appeal. Section 2(1) of the Act defines a dismissal as including: “[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so….” This definition is practically the same as that contained at section 1 of the Unfair Dismissals Act, 1977. The authorities on its application in cases under that Act outline two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second, or “reasonableness”, test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.In the within matter the Appellant has contended that the Respondent conducted itself so unreasonably as to entitle her to terminate the employment contract. The issue for consideration by the Court is whether the Appellant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 2(1) of the Act. In reaching its conclusion on that question, the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submission made by the parties In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. He or she must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (seeConway v Ulster Bank Limited UDA474/1981). In Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise grievance procedures, the Employment Appeals Tribunal held:- “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”. The Appellant in the within appeal contends that the investigation of her complaint of sexual harassment was conducted imperfectly and she states that she was shocked at the outcome. She was made aware by the Respondent in the policies which were provided to her and in the report of the investigator, of the means and timeframe for the making of an appeal.A complainant who seeks to invoke the reasonableness test in furtherance of a claim of constructive dismissal must also act reasonably by providing the employer with an opportunity to address whatever grievance he or she may have. The Court is not satisfied that there were factors present which might have justified the Appellant in depriving the Respondent in the within matter of the opportunity to address any concern she had with the outcome of the investigation by way of an appeal of that outcome. The Court therefore concludes that the Appellant was not unfairly dismissed nor discriminated against within the meaning of the Act. Decision The Court has earlier set out that, by application of the decision of this Court inCork County VEC v Hurley (EDA 24/2011), it is necessary that a discriminatory act occurred within the cognisable period for the with complaint in order that an event occurring outside of that period could be considered as part of a continuum or regime of discrimination and consequently within the jurisdiction of the Court under the Act. The Court has concluded that the Appellant was not the subject of discriminatory treatment including as regards victimisation and discriminatory dismissal in the period of 21stMarch 2016 to 20thSeptember 2016. The Court cannot therefore consider an allegation that the Appellant was sexually harassed on 23rdFebruary 2016. In those circumstances, the Court determines that the Respondent did not discriminate unlawfully against the Complainant within the meaning of the Act. The within appeal therefore fails. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Cathal Nurney, Court Secretary. |