A WOMAN HAS won a €37,000 payout at the Workplace Relations Commission (WRC), after claiming that she was sexually harassed and had felt pressurised to rub antibiotic cream into her employer’s back and groin area.
The former food service worker had brought a case over the payment of wages, unfair dismissal and sexual harassment against her former employer.
The adjudication officer found that the claimant’s “evidence of sexual harassment to be credible and compelling” and accepted text messages corroborating her evidence.
The officer also dismissed the findings of an investigator – appointed by the employer while the worker was still employed there – who had not upheld the bullying and harassment claims at the time.
Also upholding her case of constructive dismissal, the adjudicator said that they were satisfied the employer had acted in a manner “which was destructive of a relationship of trust and confidence”.
‘I’ll undo what the quack does’
The woman involved submitted to the WRC that she was subjected to “ongoing bullying and harassment and intolerable working conditions during the course of her employment which had a detrimental effect on her health and wellbeing”.
She submitted that she worked 25-30 hours a week but received €200 in wages no matter how much she worked.
When she contacted a solicitor, who in turn sent a legal letter to the employer, she submitted that there was an attempt to coerce her into withdrawing her complaints, and that other employees were prevented from speaking out on her behalf.
She submitted that she was diagnosed with a mental health condition, and was on medication for depression while working there.
Included as part of her claims was a selection of text messages – between the worker and her employer, and also between the worker and other staff members – which she said demonstrated both the employer’s awareness of her mental issues and his disregard for them.
Also tied up with that was an allegation of threatening behaviour, where she claimed the employer said he would report her to social welfare:
She asserted that the respondent told her to sign on with Social Welfare because her hours were not safe… When she subsequently challenged the respondent about not paying her properly and above board, she alleged that he got really angry and said that if he brought social welfare down on them, she would lose her job, her social and her house.
On the issue of text messages, the worker submitted the following where her employer tells her “I’ll undo what the quack does” and “I won’t hire anymore hypochondriacs”.
A witness giving evidence told the WRC that the employer “deliberately belittled and put down the claimant”, while another witness said it was “common knowledge that the claimant was on medication for her mental health issues and that the respondent was constantly on her back and that she was often crying”.
‘All the sex you can handle’
Alongside the claims of bullying which affected her mental health, the worker submitted that she was sexually harassed by her employer.
The WRC said: “It was submitted that the claimant would say that her employer made reference to her physique while in the employment, referring to her as a boy and made repeated reference to her weight, physical appearance and the size of her breasts.
In or around November 2014 , the respondent called the claimant to his office and asked her to assist him in applying antibiotic cream to his back area. She felt pressurised to do so and became upset after doing it. It was submitted that the respondent then pointed to his groin area and asked her if she would like to apply some there.
Text messages were also submitted to support her case, where he said to her: “You are on €9 per hour for the last year. Plus all your benefits, free food, all the sex you can handle. Praise when its due; dates with toy boys, girls to talk s…. with. What more do you want.”
One witness gave what was described as “compelling and credible evidence” on the employer’s remarks that the woman “looked like a boy and had no tits anymore”. Another witness recalled comments about the worker’s “thin figure and flat chest”.
‘Independent investigator’
The crux of the employer’s defence was the appointment of an investigator to look into the worker’s claims – with an agreed terms of reference – prior to her requesting her P45 in September 2015.
The worker had reservations about the “independence of the investigator” but let the probe carry on regardless at the time.
The employer said the investigator was a senior consultant with over 30 years experience in human resources, and that he bore the cost of the investigation.
It was the employer’s contention that he was “unaware of any issues regarding the claimant’s health and no supporting medical certificates had been produced prior to the claimant’s extended sick leave period commencing in March 2015″.
It was submitted that the respondent rejected the claim that he disclosed the claimant’s medical condition to another staff member and refuted the allegation that he bullied or harassed the claimant.
He said the investigator who looked into the case at the time did not stand over the bullying claims. He also argued that the onus of proof rested on the worker over whether her stepping down from her role was justified and over whether all avenues of resolution had been exhausted.
On the allegations of sexual harassment and victimisation, the employer contended that no “substantive evidence” had been given to support the allegation of discrimination on the grounds of gender and that no evidence supported an allegation of victimisation.
He reiterated that the original investigator did not uphold the complaints of sexual harassment, harassment or bullying. Furthermore:
It was contended that the messages presented are select messages provided by the claimant, that if she did not wish the respondent to text her she could have brought that to his attention or use the blocking facility.
The investigator appointed by the employer, meanwhile, had not had access to the text messages during the original probe in 2015.
Judgement
The WRC adjudicator noted that the employer did not attend the final hearing in August 2017, and said that he “did not deny the veracity of the texts”.
“I note that the text messages contradict the submissions by the respondent of being unaware of the claimant’s mental health issues,” they said.
I found the claimant’s evidence regarding an intolerable working environment to be credible and I accept that this is corroborated by the text messages exchanged between the claimant and the respondent.
They found that the employer had conducted themselves “in a manner which was destructive of a relationship of trust and confidence”, and concluded that the complaint of constructive dismissal was upheld.
For this matter, the worker was awarded €20,000 by the WRC.
On the claims of sexual harassment, and in particular the applying of the cream, the adjudicator said: “I don’t find the respondent’s assertion that it was accepted by both parties that this was an act of assistance without sexual connotations to be credible.”
On the original investigation arranged by the employer, it was said that this was “compromised and flawed and should be set aside”.
I found the claimant’s evidence of sexual harassment to be credible and compelling and I accept that this is corroborated by the unchallenged text messages exchanged between the claimant and the respondent.
The adjudicator also upheld the claim of sexual harassment, and awarded the complainant €17,450.
In all, she was awarded €37,450 to be given within 42 days of the date of the decision on 13 April this year.
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