Verbal sexual harassment case

I represent General Soft Drinks Ltd and have been asked to write in the light of the flurry of comment, some pertinent and some scantily-informed, that followed the various reports and features carried in the media about the case Doris Bonello and General Soft Drinks Ltd decided in the Industrial Tribunal July 27.

1) For the record, in her application to the Tribunal, Ms Bonello made three claims against the company, namely that she had been sexually harassed, that she had been discriminated against and that she had been constructively dismissed. The Tribunal found against the company on only the first of the three counts: on the matter of discrimination, it was found that there was no case to answer and on the matter of constructive dismissal, the Tribunal found that Ms Bonello’s termination of employment was her own fault since she had chosen the route of confrontation (l-appellanti rrikorriet ghall-konfrontazzjoni mingħajr ma esplorat rimedji sodisfaċenti għaż-żewġ naħat” Award p13)

Insofar as concerns the finding of the Tribunal, the company respectfully submits that it is arguable whether a single instance of an admittedly vulgar verbal interjection, even with the sexual innuendos identified by the Tribunal, can constitute sexual harassment at law. The National Council for Promotion of Equality, at its annual conference some months ago, which I attended, made reference to the requirement of repetitive behaviour in order to establish harassment, for instance.

This having been pointed out, it should be noted that the company was not found liable for having harassed Ms Bonello itself but for not, in the Tribunal’s finding, having systems and procedures in place to forestall, to the extent possible (the extent to which a misplaced attempt at humour can be forestalled effectively is in itself highly debatable) and to encourage reporting of instances of harassment. Somewhat paradoxically, the Tribunal based itself, to an extent, on the fact that there were no reports to justify its finding that the procedures and systems were not satisfactory.

The company’s position is that there were no reports simply because there were no cases, but it is acknowledged that three years ago, when the incident took place, the procedures were perhaps not fully operational. This is why the company did not appeal the Award, as it was entitled to do.

2) For the sake of accuracy, it has to be stated that the meeting at which Ms Bonello attended was not a board meeting and nowhere does the Tribunal state that any directors attended or, for that matter, the general manager or any manager other than the one responsible for the remark that was the basis of the case. The meeting was an ordinary meeting for employees within the relevant section and Ms Bonello remained for the duration of the meeting and in fact carried on with her work for the rest of the day. It was later in the day that she reported sick and left work.

3) Insofar as concerns the company’s reaction, both to the incident itself and in respect of the manager concerned, as soon as the matter was brought to the attention of senior management, a day or so after the incident occurred, the manager concerned was directed to send a letter of apology to Ms Bonello and he was verbally warned about his behaviour.

Anyone who is at all au courant with disciplinary matters knows that in management, any warning, be it verbal or written, is an extremely serious matter and I am aware personally that the manager concerned was made forcefully and unequivocally conscious that his behaviour was unacceptable and that any repetition would lead to serious consequences.

With regard to comments made that the disciplinary action taken against the manager was too lenient, quite apart from the considerations given in the previous paragraph, the persons making such comments are perhaps unaware that the law precludes, absent a collective agreement, any punishment other than a warning, short of outright dismissal.

The company did not – and still does not – deem a single lapse of judgment to be a justification for dismissal and since the law precludes suspensions or fines, it was limited in the action it could take. That this does not satisfy the urge for retribution evidenced by some comments made is acknowledged, but this is not a matter within the control of the company.

4) Many comments have focussed on the allegations made that there were previous episodes of harassment and that Ms Bonello had suffered psychological harm.

It is to be noted that no evidence whatsoever was brought about previous episodes, either concerning Ms Bonello or any other employee, and in this regard the Tribunal chose to rely on the testimony of Ms Bonello’s medical adviser, who in his turn was relying on what Ms Bonello said to him.

It is also to be noted that although summoned more than once, Ms Bonello’s psychiatrist failed to appear to testify and to give evidence on her state of health.

5) Finally, remarks have been made regarding the award of €2000 given against the company: it is clear that this admittedly nominal amount reflects the extent of the company’s liability, that is to say its failure, at the time, to have a fully-distributed sexual harassment policy. No finding of sexual harassment was actually made against the company, as is clear from a dispassionate reading of the Award and the comments made in this connection are unwarranted.

The fact that the Tribunal gave the company 40 days in which to make settlement was entirely the choice of the Tribunal: it is actually quite normal that time to settle is granted and it is doubtful that much thought was given to this aspect of the matter.

My clients trust that the position is now clear and assure all concerned that way before the Tribunal had made its limited findings in their regard all remedial action had been taken.