Suchavadee Foley ordered a tea from
Defending an Equal Status claim
The company put the following points to
- It was a pleasant encounter, as
Ms Foley was laughing. - The image was not offensive because it was drawn like an emoji.
-
It was not meant to be a racial slur. In fact, the employee thought that
Ms Foley was very glamorous and did not mean any malice. Ms Foley agreed to the drawing.
All of the above was disputed by
At the hearing, the employee apologised for the upset caused and spoke about her personal respect for Japanese-Brazilians (coming from
To bolster this defence, the company explained that it had a Harassment Policy and had provided training to its staff. It commented that the incident was a benign one, and that
The company expanded on its defence around training provided to its employees. It pointed to existing case law, highlighting that training does not have to be perfect. In order to fully defend the complaint, the training needed to be comprehensive enough to protect the employer from liability. They also asked for the decision to be anonymised because of the disproportionate impact that the finding may have on its business.
Outcome
In his conclusions, the Adjudication Offer (AO) felt that the drawing was a clear visual depiction related to
The AO confirmed that the conduct was unwanted. The employee's evidence, and her apology stating that she had not intended to humiliate or make
The AO held that the customer service training and harassment policy did not have sufficient information for staff to explain about the power that drawings and pictures may have on the recipient. Harassment is in the eye of the beholder. The company was held vicariously liable for the acts of its employee, notwithstanding that there was no malice attached to her actions, and she was trained.
Employer learnings
The employee was fully trained in customer service and harassment. Still, the reprehensible act occurred. The WRC assessed the extent of training provided to the employee and held that it did not go far enough, because it did not consider the impact that visual depictions selected by employees would have on members of the public.
It is worthwhile to review policies, to ensure that the impact of inappropriate behaviour should be assessed and discussed as part of training for employees. By way of comment, I suspect that an award in favour of
Originally Published by
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Cork
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