Facts
Decision


An employee's behaviour during the investigation of a sexual harassment complaint that she had made against her manager was a crucial factor in the Court of Industrial Disputes' decision to dismiss her application for damages for unlawful termination and discrimination under the Law for Equal Treatment of Men and Women in Employment and Vocational Training 2002-2006 (Law 205(I)/2002).

Facts

The applicant was employed by the Energy Authority's Union of Technical Personnel from November 1 2000 to July 31 2008. On June 19 2008 the applicant submitted a sexual harassment complaint against her manager (the respondent) to the employer's executive committee. The applicant's manager was also a member of the executive committee, but was excluded from its examination of the complaint made against him.

After considering the complaint, the executive committee requested the applicant to provide evidence to support the allegations, but she refused. Her behaviour was so abusive that the executive committee considered it impossible to investigate the complaint in her presence. Despite the executive committee's assurances that the matter would be examined confidentially and objectively, in accordance with the administration commissioner's code of conduct, the applicant refused to provide any evidence if she could not be accompanied by three persons of her choice. The applicant was unconvinced by the executive committee's intentions and behaved disrespectfully. As a result, she was suspended for six weeks, during which time the complaint was investigated.

The executive committee informed the respondent of the sexual harassment complaint filed against him and asked for his position regarding the allegations to be submitted in writing. The respondent submitted his reply on July 2 2008, supported by evidence obtained by third parties.

Through letters dated July 10 2008 and July 22 2008, the executive committee requested the applicant to provide supporting evidence to her complaint in order to investigate the matter. However, the applicant ignored the executive committee's requests.

As a result, on July 22 2008 the executive committee examined the complaint without the applicant's evidence and dismissed it on the grounds that it was false, unfounded and unsubstantiated. The applicant was called to appear before the executive committee on July 31 2008 to apologise for the false complaint, but she refused. It was decided to fire the employee for:

  • denouncing an executive member of her employer without any supporting evidence;
  • refusing or ignoring requests to provide evidence in support of her complaint; and
  • behaving in an abusive and unacceptable manner when asked to provide supporting evidence.

Decision

In reaching its decision, the Court of Industrial Disputes examined whether:

  • the applicant's termination was due to the sexual harassment complaint that she had submitted or her abusive behaviour in refusing to appear before the executive committee and provide further supporting evidence; and
  • the applicant had been discriminated against under Law 205(I)/2002.

Unlawful termination
When considering the lawfulness of the termination, the court referred to the principle of mutual trust and confidence which underpins an employment relationship. The court specifically highlighted the employee's duty to behave in a way that facilitates mutual cooperation with the employer, which is achieved by displaying good faith and proper manners and showing respect to company executives.

Further, the court applied the reasonable employer test based on the circumstances. With reference to case law, the court confirmed that abusive behaviour on the part of an employee can justify the termination of employment without notice. On this ground, the court was satisfied that the applicant's refusal to provide supporting documentation amounted to abusive behaviour and breached the duty of mutual trust and confidence required for the employment relationship to continue.

On this reasoning, the termination of the applicant's employment was found to be lawful and the applicant was not entitled to damages for unlawful dismissal.

Discrimination
In deciding whether the applicant had been a victim of sexual harassment that amounted to discrimination, the court referred to European Court of Justice case law, which confirms that sexual harassment constitutes:

  • unwanted behaviour of a sexual nature with the purpose or effect of offending a person's dignity; and
  • the creation of an intimidating, hostile, humiliating, degrading or offensive environment during employment, vocational training or effort to access employment or enrol in training.

These elements must coexist for sexual harassment to be proven.

According to the evidence before the court, the applicant had not proven that the respondent's behaviour was unwanted; rather, it was acceptable and ongoing. On this ground, no incidence of sexual harassment or discrimination against the applicant had been proven and the application was dismissed.

For further information on this topic please contact George Z Georgiou at George Z Georgiou & Associates LLC by telephone (+357 22 763 340) or email ([email protected]). The George Z Georgiou & Associates website can be accessed at www.gzg.com.cy.