Case Number: ADJ-00006961. Workplace Relations Commission

• Docket Number: ADJ-00006961
• Hearing Date: 03 November 2017
• Date: 20 September 2018
• Court: Workplace Relations Commission
• Parties: An Employee V A Pharmacist
• Respondent: Pharmacist

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006961

Parties:

	Complainant	Respondent
Anonymised Parties	Employee	Pharmacist

Representatives Sean Ormonde Sean Ormonde & Co. Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00009438-001	31/01/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00009438-002	31/01/2017

Date of Adjudication Hearing: 03/11/2017

Workplace Relations Commission Adjudication Officer: Michael Ramsey, BL

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint(s)/dispute(s) 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.

Background:

The Complainant is seeking adjudication by the Workplace Relations Commission under section 77 of the Employer Equality Act 1998 and has submitted she was discriminated against by her employer by reason of her gender and further treated her unlawfully by discriminating against her by harassing her. The Complainant is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 in that she did not receive a statement in writing on my terms of employment.

Summary of Complainant’s Case:

The Complainant was employed as an OTC assistant from 11th December 2006 with the Respondent Company and was paid €245.28 (gross) per week and work approximately 24 hours per week. In the circumstances of this case, the event that precipitated this matter occurred on the 14th November 2016. On this date, the Respondent made an expletive laden remark in relation to the Complainant’s makeup whilst a customer was present. These comments were repeated to the other members of staff when the aforementioned customer left. The Respondent continued to make similar remarks and the Complainant felt humiliated and embarrassed and proceeded to the back of the dispensary to retrieve her keys which she then threw in front of the Respondent and intimated to the Respondent that she did not appreciate the manner in which she had been addressed and he could get her P45 ready. The Complainant explained she was not prepared to remove her make-up as she was wearing same to conceal a breakout of dermatitis and erythema of which she had suffered for a long time. The Complainant indicated that the Respondent followed her to the car park. The interaction between the parties continued and ultimately following further heated exchanges the Complainant left the premises and drove to her husband’s place of work. The Complainant further explained that, because of her skin condition, she had worn this type of make-up previously to her employment and the Respondent had not made any similar remarks in relation to her makeup. The Complainant indicated she did not believe she did anything to warrant such a humiliating and personal attack. The Complainant gave evidence of a further personal attack on her, as she perceived it, in February 2010. In that respect the Complainant wrote a letter dated the 24th February 2010 in which she detailed the incident of concern wherein she felt totally humiliated and embarrassed and did not believe she should be treated in the workplace in such a manner. The Complainant indicated that indicated that the workforce consisted of a number of employees who were predominantly female and the only other male employee was another pharmacist. The Complainant contended whereas other female employees were verbally abused and humiliated by the Respondent, he did not afford the same type of behaviour to any male employees. Ultimately, following the incident on the 14th November 2016, the Complainant was certified by her general practitioner as unfit for work due to work related stress. The Complainant has not returned to this employment and believes this whole episode has caused a loss of self esteem and confidence. In an undated letter, the Complainant forwarded a letter to the Workplace Relations Commission enclosing her correspondence with the Respondent (outlined below). The Complainant indicated she had not received a copy of the employee handbook. The Complainant enclosed a photograph of the makeup she was wearing on the day of the 14th November 2016 and a copy of an earlier incident referred to by letter of the 24th February 2010. It was submitted on behalf of the Complainant that she was seeking redress for discrimination on the grounds of gender and the manner in which she was treated constitutes direct and/or indirect discrimination as well as harassment. Accordingly, in light of such treatment the Complainant was entitled to resign having been constructively dismissed. It was submitted on behalf of the Complainant that she has a right to be treated with dignity in the workplace and believes the behaviour of the Respondent on the day in question, and on a previous occasion, to the Complainant and to other employees was that of a domineering bully. It was submitted on behalf of the Complainant that the remarks made by the Respondent were clearly inappropriate and caused significant distress and offence and she was not prepared to continue to work with the Respondent under such conditions. In conclusion, it was submitted that in light of the discrimination suffered by the Complainant it was entirely reasonable for her to resign her employment as such a resignation, in the circumstances, was a constructive dismissal and seeks compensation in respect of same.

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