Case Number: DEC-E2016-029. Workplace Relations Commission

• Docket Number: DEC-E2016-029
• Date: 12 February 2016
• Court: Workplace Relations Commission
• Parties: A Female employee -v- A Café Owner

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-029 PARTIES A Female Employee (Represented by Business & Commercial Solicitors) AND A Café Owner (Represented by Patrick P. O’Sullivan & Co. Solicitors) File Reference: EE/2014/001 Date of Issue: 12th February 2016 1. DISPUTE

1.1 This dispute concerns a claim by the Complainant that she was subjected to harassment and/or sexual harassment in the course of her employment with the Respondent contrary to Section 14A of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), before she was summarily dismissed by the Respondent as a reaction to making a complaint of discrimination under the Acts.

1.2 Through her Solicitors, the Complainant referred a complaint under the Acts to the Director of the Equality Tribunal, received on 6th January 2014. On 12th August 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 27th August 2015. Both Parties were represented and in attendance along with a number of witnesses. All written and oral evidence and submissions presented to the Tribunal including documentation submitted before and during the hearing have been taken into consideration when coming to this decision. I also indicated that I would be relying upon the key statutory provisions and case law relating to harassment, sexual harassment and victimisatory dismissal.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

2.1 The Complainant is a Polish national who has been residing in Ireland for a number of years. She was employed as a Catering Assistant in a small family run Café located near Dublin City Centre, owned and run by the Respondent and his wife. The Complainant commenced employment on 22nd July 2013 and worked part-time at the Café for approximately five months before the termination of her employment on 20th December 2013. She had been furnished with a written ‘part-time temporary’ contract providing for a three month probationary period. The Complainant contends that the Café was busy, she had been performing well in her position, and no issue regarding her performance had ever been raised by the Respondent. On Monday 9th December 2013 and before the sequence of events leading to her dismissal, she had been advised that the Respondent was opening a second Café which he wanted her to manage. This would amount to a promotion, bringing with it additional responsibility and an increase in pay.

2.2 The Complainant gave evidence that she worked in a small space alongside a number of other female employees and the Respondent’s wife in the Café. She alleged that the Respondent was always making sexual jokes and engaging in sexual innuendo with the female staff. In particular, she alleged that he had made comments with reference to what she did with her husband. Also alleged in her submission was that the Respondent was constantly looking at her in an inappropriate and lascivious or lustful manner and was touchy-feely around her. As the Respondent was “Bulgarian and married”, she never took his jokes seriously. Also as his wife was almost always present in the Café, there were cameras in the Café, and her husband knew the Respondent, she said she never felt unsafe owing to his conduct. However she disliked his jokes but needed the work and so accepted the situation. She never made a complaint in relation to this treatment but had indicated to another waitress called M that she felt uncomfortable around the Respondent, and queried whether he treated all the other female staff similarly. She also complained that her privacy had been violated as the Respondent had searched her bag in the staff room.

2.3 On Friday 13th December 2013, the Respondent held a Christmas party for his staff including a meal followed by drinks at a City Centre disco. The atmosphere was good and the group consisting of the Respondent, his wife, the Complainant and a number of other female staff enjoyed a few drinks and went dancing before going home at 2am, apparently all on good terms. The Complainant gave evidence that photos were taken during the course of the evening, primarily by the Respondent and his wife.

2.4 The staff were in good spirits the following Monday 16th December 2013 and there was talk about the new café. At the end of her shift, the Complainant asked the Respondent to see the photos from the Christmas party on his phone. He initially said he had deleted them but then showed her approximately ten photos of her dancing and one or two of the other staff. It was submitted that the photos taken depicted the Complainant in dance moves which were embarrassing and which she felt were taken by the Respondent for his sexual gratification. Specifically she said that it felt strange to see photos of her in a miniskirt and felt uncomfortable that a strange man and not her husband had taken so many photos of her. The Complainant spoke to her husband and the following day, she requested the Respondent’s wife “woman to woman” to ask the Respondent to delete the photos but she replied that it was his private business. She then asked the Respondent to delete them. He went mad and said he might have stored them. He threw the phone down at her before taking it back and deleting all of the photos of the party.

2.5 After lunch on Wednesday 18th December 2013, the Respondent informed the Complainant that he was letting her go at the end of the week and she would receive a letter. The Complainant returned to work at the Café the following morning of Thursday 19th December 2013 and asked to speak to the Respondent about the reasons for her dismissal. She said that she covertly recorded this conversation on her mobile phone and this recording was not proffered in evidence. She questioned what had happened to make the Respondent dismiss her when she was such a good worker and had the expectation of a promotion as a manager of the new café. The Respondent replied that there had been a breakdown in trust, that she was not part of the team and he was letting her go for personal reasons. The conversation became heated and he told her to go home and get her “papers”. The Complainant went home but returned to the Café again on Friday 20th December 2013, when the Respondent gave her a letter of the same date stating: “Due to a down turn in business, you were the last employee to enter the business. We are informing you that your contract of employment will be terminated as and from the 20th December 2013. The statutory rules of termination will apply and one weeks notice will be discharged.” She read the letter outside before challenging the Respondent again regarding the reason for her dismissal. He became very angry and threatened to call the Gardaí. She had been told that she would be paid for the Christmas period including pay in lieu of notice. However, it was only when she submitted a claim to the Rights Commissioner and sometime later that she received her outstanding pay and P 45.

2.6 In cross-examination, the Solicitor for the Respondent put to the Complainant, a number of what he perceived were credibility issues regarding her previous employment, her employment with the Respondent and the circumstances of her dismissal. When asked why she had never made a complaint, she responded that she felt safe and secure as she had her husband and matters only became clear when the Respondent had taken the photos of her. It was put to her that in her complaint form she had indicated that she felt uncomfortable about being photographed during the Christmas party and that the photos were taken without her permission. This was in conflict with her direct evidence, where she stated that she only became uncomfortable when looking at the photos the following Monday in work. It was also put to her that the Respondent had not understood why she had asked him to delete the photos and had said that he would be deleting them anyway as they were not very clear. She accepted that photos were taken throughout the course of the evening including photos of other people in the group. When put to her, she also accepted that the Respondent’s wife had taken photos of her including one of her standing behind the Respondent with her arms wrapped round his shoulders as produced at the hearing. In response, she said that they were drunk and people were having fun. It was also put to her that she had approached the Respondent in a belligerent manner and that he had not thrown the phone at her but had handed her the phone for her to delete the photos. Overall, it was put to her that he had never been inappropriate in his conduct towards her and the allegations were made in an attempt to extract money...