Case Number: DEC-E2016-058. Workplace Relations Commission

CourtWorkplace Relations Commission
Judgment Date01 March 2016
Docket NumberDEC-E2016-058
PartiesA Worker -v- A Fast Food Outlet
EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-058 PARTIES A Worker (represented by John M. Joy & Co. Solicitors) V A Fast Food Outlet (represented by IBEC) File reference: EE/2014/043 Date: 31st March 2016 1. The Claim

1.1 This claim concerns a claim by the Complainant that she was discriminated against by being subjected to regular occurrences of harassment and sexual harassment by her Manager (hereinafter the “Respondent”) which resulted in her discrimination, harassment and subsequent pregnancy related dismissal contrary to Section 14A (1) of Employment Equality Act 1998 and 2004 (hereinafter the “Acts”) on the grounds of gender. The family status claim was withdrawn on the day of the hearing.

1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 5th February 2014 under the Acts.

1.3 On the 30th December 2015, in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.

1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 5th February 2016.

1.5 The Complainant and the Respondent attended the hearing along with their representatives.

1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.

2. Complainant’s Submission

Gender Discrimination & Sexual Harassment

2.1 The Complainant stated she started working for the Respondent on the 11 November 2013. The Complainant states that at various times during the course of her employment she was subjected to unwanted sexual advances by her Manager.

2.2 The Complainant states during the course of her employment with the Respondent she was subjected to harassment, sexual harassment, gender bias, comments of sexual innuendo, intimidation, bullying, discrimination and endeavors on the part of her Manager to derogate the Complainant as a woman to undermine her confidence at work. Specifically, her Manager subjected her to unwanted sexual advances. These advances commenced approximately two weeks after the Complainant started her employment with the Respondent and progressively developed to occur regularly.

2.3 The Complainant states that she is of the belief that her Manager would check the CCTV and establish that she was alone and would then make approaches on her.

2.4 The Complainant states that one of the first events occurred around the 30 November 2013 between 8pm and 9pm and she believes she worked late that night. The Complainant states her Manager said ‘you have no transport I will take you home’ and the Complainant accepted his lift home. The Complainant states that on the way her Manager said to her ‘be careful I don’t want anyone to see you in my car’ and as the car was going around a roundabout they saw a work colleague who worked with the Respondent also. The Complainant states her Manager said ‘I was planning to bring you home to stay the night but I think these girls saw us. I’d better bring you home…’ The Complainant states her Manager drove her home and passed by her home and she said ‘it’s here’ and he pulled up at the Playschool. Outside the playschool the Complainant her Manager suggested he buy her a drink and go to his house to which she replied no. The Complainant stated that her brother then phoned her and asked her to pick him up at the Garda Station at Carrick on Suir and the Complainant told her Manager she had to collect her brother. Her Manager drove to the Garda Station and on the way allegedly told the Complainant ‘now I can’t kiss you, I can’t say goodbye.’ The Complainant states that since that event she had been unhappy going to work and told her parents and boyfriend what had occurred.

2.5 The Complainant states on another occasion her Manager offered to drop her home and she told him she had arranged transport. The Complainant states her Manager told her ‘cancel it, I will drop you home’ to which she refused.

2.6 The Complainant states that her Manager told her that she got the job because she was so pretty.

2.7 The Complainant states that she told her Manager that she had a boyfriend in mid-December. The Complainant states that her Manager started acting differently after this. The Complainant states she was given more night work and she is of the belief that he wanted to get rid of her. The Complainant states that at the time she was working maximum hours, more than most of the other employees. She notes that she asked for the morning shifts and that her Manager would say ‘no put her on the evening shift’. The Complainant states that she believed this was done as her Manager did not want her to meet her boyfriend in the evenings. At the end of each shift employees are entitled to free food but the Complainant, for fear of her her Manager’s unwanted advance, would either eat her food in her car or at the back of the building where she knew there was a CCTV camera.

2.8 On at least 10 occasion during the on the month of December alone the Manager made unwanted advances of a sexual nature towards her. The Complainant felt intimidated and dominated by her Manager. The Complainant felt very uncomfortable around him and felt incapable of asserting herself in an appropriate manner throughout the period complained of.

2.9 On regular occasions, her Manager would follow her into the staff locker room when she left her post for a bathroom break and harass her. He would say things like ‘forget about your boyfriend’ and several times told the Complainant that she should leave her boyfriend, remarks that were uninvited and unwelcome. These advances were made when the Complainant was alone and out of sight of other employees.

2.10 The Complainant states that she was the only Slovakian in the workplace other than her Manager and that her English was not good. She states she was embarrassed by what was happening and she was only 18 years of age at the time. Her Manager was the Complainants most senior Manager on site and she had no contact from the head office or HR.

2.11 The Complainant states she got on well with all of her work colleagues. She states she was never given a written policy about bullying or grievance nor was she given a copy of the Company Handbook. The Complainant stated that she was not good at reading English either and that she did not receive any documents in Slovakian, her native language. Her contract of employment was provided in English only.

2.12 The Complainant is of the belief that she was dismissed as she was pregnant and because she rejected the advances of her Manager.

Unfair/ Discriminatory Dismissal on Grounds of Pregnancy

2.13 On the 9th January 2013 the Complainant states that she carried out a pregnancy test which was positive. She attended the Doctor on the 10th January 2014 at 10am. She telephoned the store on the 9th January 2014 to state she would not be in on time Friday as she had a medical appointment. The Complainant states that a female Manager took her call and said she would leave a message in the office. She was scheduled to work at 11am on Friday 10th January 2013. Friday 10th January 2014 the Complainant again telephoned and stated she was going to the Doctor. The Complainant was seen by her Doctor at 11.30am and did not have a note from the Doctor.

2.14 At 12.30 the Complainant went to work and met her Manager. The Complainant stated to her Manager that she was at the Doctors, did not have a note and that she was pregnant. The Complainant stated as per the company policy on absence from work a medical certificate is only required after 2 days of illness. The Complainant stated that her Manager asked her for a note from the Doctor and the Complainant stated she would get one.

2.15 The Complainant stated that she worked on Saturday 11th and Sunday 12th January 2014 and her Manager suggested she be suspended for a week and that he would be talking to his bosses in Limerick. The Complainant stated he said that the reason for the suspension was due to not having a note from the Doctor. The Complainant again stated she would bring the note on the Monday.

2.16 On Monday 13th January 2014 the Complainant attended the Doctors surgery and obtained two certificates from her Doctor. The Complainant drove to her place of work with her brother and handed her Manager the absence note. One certificate confirmed her attendance at the medical appointment of 10th January 2014 and one confirmed her pregnancy. The Complainant stated that when she handed over the certificates that her Manager gave the second certificate back [confirming her pregnancy] to her as he didn’t require it he said.

2.17 Later that same evening the Complainant states that her Manager called her stating she was sacked and to come in the following day if she wanted to know why she was sacked.

2.18 The Complainant stated she went to her workplace at 6pm on the...

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