A Complainant v A Company (in voluntary liquidation)

 
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ODEI - THE EQUALITY TRIBUNAL

DEC-E2002-041

EMPLOYMENT EQUALITY ACT, 1998

A Complainant (Represented by O’Mara Geraghty McCourt, Solicitors on the instructions of the Equality Authority)
AND
A Company (In voluntary liquidation)
Abstract:

Employment law – Equality – Sexual discrimination – Delay – Whether company delayed in investigating complaint – Whether employer took reasonable steps to prevent the harassment – Employment Equality Act, 1998 – Equal Status Act, 2000.

The complainant made a complaint against her employer that she had been discriminated against on the grounds of gender by the manner in which the company had dealt with her allegations of sexual harassment. The complainant had been employed as a temporary driver on a six month contract. The complainant alleged that she met her immediate supervisor at a public house to discus work-related matters and that inappropriate advances were made. The complainant referred the matter to the Chief Executive of the company. Subsequently the complainant applied for a full-time permanent position with the company and did not receive one. The complainant that her complaints were not dealt with by the company and that she was subsequently victimised by a refusal to grant her a permanent position. The company had subsequently gone into liquidation.

Held by the Equality Officer in awarding 10,000 Euro. The claim of victimisation could not be upheld as the complainant had only been taken on for a temporary position. The employer had failed to take reasonable practicable steps to prevent the harassment in question and had therefore failed to provide a statutory defence. The employer had acted contrary to section 23 of the Employment Equality Act, 1998.

Date of issue: 16 September 2002
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DISPUTE

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1 This dispute concerns a claim by a complainant that she was discriminated against by a company on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998, by the manner in which the company dealt with her complaint of sexual harassment by a senior employee. In accordance with this Office’s normal practice when dealing with allegations of sexual harassment, no individuals or institutions are identified in this decision.

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2 The complainant referred a claim to the Director of Equality Investigations on 23 May 2000 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A delay ensued pending a decision by the Equality Authority on whether to provide the complainant with representation. Confirmation was received in November 2000 that O’Mara Geraghty McCourt, Solicitors, had been requested by the Authority to deal with the complaint. Submissions were received from the parties and a joint hearing was eventually arranged for 6 November 2001.

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LIQUIDATION OF THE RESPONDENT COMPANY

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1 On that date, a settlement was reached between the parties and the hearing was adjourned by mutual agreement, pending the implementation of the settlement. By letter received 14 December 2001, the complainant’s representative sought a re-scheduling of the hearing as the respondent had ceased trading and was not in a position to implement the settlement. Both parties were notified by letter of 15 January 2002 that the hearing would re-convene on 21 February 2002. There was no appearance on behalf of the respondent on that date, and the hearing proceeded as scheduled. It was subsequently confirmed that the respondent company had gone into voluntary liquidation on 5 February 2002.

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2 Correspondence subsequently ensued with the liquidator appointed to the respondent company, and with his legal advisers. By letter of 15 March, the liquidator’s legal advisers advised that the liquidator had no objection to the settlement being confirmed with the status of a preferential debt. However, the complainant’s representative declined to withdraw the complaint in the absence of payment of the agreed settlement. In the absence of such withdrawal, and as a valid claim under the Act had been referred to the Director and formally assigned to me, it was necessary for me to complete my investigation and issue a decision.

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SUMMARY OF THE COMPLAINANT’S CASE

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1 The complainant commenced work with the respondent as a driver in April 1999. There was no written contract of employment but the complainant says she was led to believe that she would be made permanent after a six-month probationary period.

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2 In June 1999 the complainant had a work meeting with her immediate superviser, the Transport Manager, at a pub in Drumcondra, to discuss the failure and/or refusal of employees to use radios with which they had been provided, and other safety issues. The complainant alleges that during this meeting the Transport Manager attempted to hold her hand. She says she took her hand away and made it clear she found the attempt inappropriate. She says that he was again extremely familiar at a subsequent meeting, holding her hand and kissing her, and that she again made it clear that this behaviour was both inappropriate and unwanted.

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3 The complainant reported the incidents, without naming her alleged harasser, to the then-Chief Executive of the company. At a subsequent meeting, the complainant went as afar as she could go to indicate her alleged harasser’s identity, without actually naming him, because it appeared the Chief Executive suspected another individual. The complainant is unaware of the consequences of her complaint, but she was informed that her roster was being changed in the week following her second meeting. She complained to the Transport Manager, who suggested they meet after work to discuss the matter.

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4 Again the meeting took place in the pub. The Transport Manager was already there when the complainant arrived and appeared to have drank a considerable amount of alcohol. Following an argument about the roster in which he suggested that if the complainant did not “toe the line” she would not be taken on at the end of the season, the Transport Manager became more friendly and attempted to hold the complainant’s hand. He put his hand on her leg and she lifted it off. He then held her hand down with both of his and attempted to kiss her. She got up and moved across the table, telling him he had gone too far and she was not going to take it anymore.

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5 The following day the complainant contacted the Chief Executive and explained what had happened, including her fear that her job was threatened. He subsequently informed her that she would have to make a complaint in writing, which she was reluctant to do, but he said the matter could not be resolved unless she did so.

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6 The complainant had been led at all times to believe she would be made permanent after a six-month probation period. On 7 November however, she discovered she would have to reapply for her job. After being informed by the Chief Executive that he would not consider her future employment until the matter with the Transport Manager was resolved, the complainant made a formal complaint on 9 November.

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7 By letter dated 17 November, the complainant submitted an application form. On 24 November, the Chief Executive advised that the company was not recruiting for the permanent full-time position she was seeking. The complainant responded on 25 November, seeking an immediate answer to questions regarding the type of work available and saying she did not know if she was still employed by the company. The complainant received further correspondence from the company on 10 December and 25 January 2000, but she has not been offered work since 14 November and she says that she is the only employee who unsuccessfully reapplied for her job.

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8 Since making the complaint, the complainant has heard nothing further, although the Equality Authority was informed on 4 October 2000 of certain difficulties the respondent had been experiencing.

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9 The complainant submits that the respondent discriminated against her contrary to the provision of the Employment Equality Act, 1998 in that she was sexually harassed within the meaning of section 23 (3) and that the respondent did not take the steps required by section 23 (5) to establish a defence.

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10 Further, the complainant submits that the respondent penalised her in circumstances amounting to victimisation in failing and/or refusing to make her permanent, following her six-month probationary period, on account of her having made a sexual harassment complaint.

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11 In the alternative, and without prejudice to the foregoing, the complainant submits that the respondent has penalised her in circumstances amounting to victimisation in refusing to grant her a new contract and dismissing her on account of her having made a sexual harassment compliant.

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SUMMARY OF THE RESPONDENT’S CASE

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1 The respondent company was set up as one of a number of trading enterprises through the initiative of a umbrella enterprise whose mission was to provide employment opportunities to the long-term unemployed in north Dublin. The respondent company commenced operations in October 1997 with a five-year contract with a state company to provide certain passenger transport services. In March 1999, the company won a two-year contract with another state company to provide staff transport services in the same location.

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2 In April 1999, the respondent recruited fifteen full-time and several part-time drivers to service temporary contracts for the provision of a passenger service for the summer season. The respondent said it was satisfied that the temporary nature of the contract was emphasised to all interviewees and that at no time was a commitment given to any applicant that...

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