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This is a noteworthy ruling on workplace sexual harassment from the High Court of Justice of Catalonia, no. 3814/2014, dated 26 May, AS20141955. The court holds that a line manager who gives a non-consensual kiss to a subordinate commits sexual harassment at work and infringes fundamental rights. The conduct was neither sought nor consented to or tolerated, and it humiliated the employee concerned. Accordingly, the graduated-sanctions doctrine does not apply, and the dismissal is classified as fair dismissal.
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Jurisdiction: Employment (Social)
appeal no. 1205/2014
Reporting Judge: Hon. Ms ……………………
The High Court of Justice (TSJ) dismisses the appeal brought by the claimant against the ruling of Employment Court (Juzgado de lo Social) no. 2 of Terrassa, dated 02-12-2013, in proceedings concerning dismissal.
HIGH COURT OF JUSTICE OF CATALONIA
EMPLOYMENT DIVISION Case Reference (NIG): 08279 - 44 - 4 - 2013 - 8000628
EBO
HON. MR ……………………
HON. MR ……………………
HON. MS ……………………
In Barcelona, 26 May 2014
The Employment Division of the High Court of Justice of Catalonia, composed of the Honourable Judges named in the margin,
IN THE NAME OF THE KING
has delivered the following
JUDGMENT no. 3814/2014
In the appeal brought by Arturo against the ruling of Employment Court no. 2 of Terrassa dated 2 December 2013, handed down in proceedings no. 31/2013, with FONDO DE GARANTÍA SALARIAL (Wage Guarantee Fund), BASF Poliuretanos Iberia, S.A. (public limited company) and BASF Polyurethanes South Africa (Pty) Ltd as respondents. The reporting judge is Hon. Ms NATIVIDAD.
BACKGROUND FACTS
FIRST.– On 8 January 2013, a claim for dismissal (general category) was lodged with the above-mentioned employment tribunal. In that claim, the claimant set out the facts and legal grounds he considered applicable and concluded by requesting that a ruling be delivered accordingly. The claim was admitted, the hearing was held, and a ruling was delivered on 2 December 2013, containing the following operative part:
'I find that the courts of the Employment Jurisdiction of the Kingdom of Spain lack competence to hear the claims brought against BASF POLYURETHANES SOUTH AFRICA (PTY) LTD.
I dismiss the claim brought by Mr Arturo, acquitting BASF POLIURETANOS IBERIA SA of all claims made against it. I declare the disciplinary dismissal dated 15/01/2013 to be fair, confirming the termination of the employment relationship with effect from that date, with no entitlement to compensation or to salary in lieu of notice.'
SECOND.– The ruling sets out the following proven facts:
First.– The claimant, Mr Arturo (National Identity Document no. NUM000), was employed by the defendant company BASF POLIURETANOS IBERIA SA, with a seniority date of 01/03/1995, holding the position of Branch Manager (undisputed). The applicable collective bargaining agreement is that of the Chemical Industry (undisputed).
Second.– The claimant had previously provided services to various BASF Group branches across Europe and Asia (undisputed). On 14/06/2012 he agreed to take over the management of the South Africa branch of the polyurethanes division, which is operated by the co-defendant company of South African nationality, BASF POLYURETHANES SOUTH AFRICA (PTY) LTD (Defendant's Document 1, incorporated herein by reference). Among other terms, it was agreed that the secondment would last a maximum of six years, that the claimant would enter into an employment contract with the host company, and that during the secondment his contract with co-defendant BASF POLIURETANOS IBERIA SA would be held in 'latent' (suspended) status.
Third.– The claimant received (as acknowledged by the defendant) a fixed annual salary of €96,608 and a variable salary (2012 figure) of €36,075.
Fourth.– The BASF Group has a Global Transfer Policy (hereinafter 'GTP', Claimant's Document 4, incorporated herein by reference), which provides, among other things, for the following:
a. Housing (GTP section 7): the company will cover the cost of housing within established budget limits. The employee bears the cost of utilities (Claimant's Document 5). Co-defendant BASF POLYURETHANES SOUTH AFRICA (PTY) LTD rented accommodation for the claimant and his family at a cost of 40,500 South African rand (ZAR), Claimant's Document 17.
b. Secondment allowance (GTP section 8): the company shall pay a so-called secondment incentive to recognise employee mobility and to compensate for any adverse living and working conditions at the destination (Claimant's Document 5). The company set a secondment incentive (referred to internally as a 'secondment supplement') totalling €16,906 (Claimant's Document 13).
c. Company vehicle (GTP section 9.4): the company shall provide a vehicle in accordance with the practices of the host company (Claimant's Document 5). The claimant was provided with a Toyota Fortuner (Claimant's Document 29), with a monthly imputed value of ZAR 6,086.23.
d. Education (GTP section 10.3.1): the company shall cover the costs (excluding school materials, uniforms and extracurricular activities) for the children of relocated employees who cannot attend state schools at the destination. The annual education cost for the claimant's school-age children (2, Claimant's Document 21) is USD 8,197 per child (Claimant's Document 24, claim).
Fifth.– As at 31/12/2012, the applicable exchange rates were as follows (Claimant's Document 60):
1 USD = €0.7576
1 ZAR = €0.0894
Sixth.– On 15/11/2013, Ms Eloisa (at the time Head of Marketing and Corporate Communications at BASF POLYURETHANES SOUTH AFRICA (PTY) LTD and a direct report of the claimant, undisputed), made a sworn statement before a public official in which she declared that she had reported that on 30/10/2012, at approximately 16:00, while she was in the claimant's office, he had touched her right hand, then stood up from his chair, attempted to kiss her, and, as she turned her head, kissed her on the cheek (Defendant's Document 3). On 12/11/2012 she had undergone a polygraph test at the initiative of co-defendant BASF POLYURETHANES SOUTH AFRICA (PTY) LTD in connection with these events (Defendant's Document 4).
Seventh.– On 27/11/2012 the claimant sent an email to the person he considered to be his line manager (Porfirio) and to the Head of Human Resources for South Africa and Sub-Saharan Africa (Sara), Defendant's Document 8, stating that he was terminating his employment contract with effect from 31/12/2012 (Defendant's Document 5). Co-defendant BASF POLIURETANOS IBERIA SA acknowledged receipt on 28/11/2012 and released him from the obligation to work until 31/12/2012. On 18/12/2012, the claimant sent a further email to the same persons withdrawing his resignation and expressing his wish to remain with the BASF Group (Claimant's Document 42), reiterated on 21/12/2012 (Claimant's Documents 43 and 44). On 02/02/2013, the claimant sent a further email indicating that from 04/01/2012 onwards he would require the vehicle and telephone that had been assigned to him (Claimant's Document 46). On the same day, he sent another email reporting that he had no access to the tools necessary to carry out his work (Claimant's Document 48). On 3/01/2013 he received an email from Mr Porfirio informing him that his employment contract had ended on 31/12/2012 and requesting that he vacate the BASF POLYURETHANES SOUTH AFRICA (PTY) LTD premises and arrange a meeting with Ms Sara (Claimant's Document 51).
Eighth.– On 24/11/2013 BASF POLIURETANOS IBERIA SA served a disciplinary charge sheet on the person it believed to be the claimant's legal representative in Spain, Mr Navarro. Since the claimant did not confirm that Mr Navarro was his legal representative until 04/01/2013, the charge sheet was served on him on that date (Document 52, incorporated herein by reference). The charge sheet alleged that on 30/10/2012 in South Africa, at 16:00, the claimant had forcibly taken Ms Eloisa by the hand and kissed her. He was given until 11/01/2013 to submit his response.
The claimant submitted his response on 10/01/2013 (Claimant's Document 54), arguing that disciplinary proceedings were not appropriate given that the employment relationship had already been terminated by dismissal on 31/12/2013, denying the allegation and stating that he had not engaged in any conduct amounting to sexual harassment at work.
Ninth.– On 15/01/2013, the defendant company dismissed the claimant by means of a letter of the same date, the full text of which reads as follows (Claimant's Document 57, incorporated herein by reference):
'Dear Sir,
With reference to the disciplinary proceedings initiated on 24 December 2012, we acknowledge receipt of your communication dated 10 January 2013, in which you submitted your response to the disciplinary charge sheet. Having completed those proceedings and assessed both your submissions and the available evidence, the following has been established:
On 30 October 2012, at approximately 16:00 (South African time), you took Ms Eloisa by the hand and kissed her. It has been established that there was neither consent nor provocation on the part of the said employee, who was your direct subordinate. It has likewise been established that she is married, has a child, and was pregnant at the time of the incident. It has also been confirmed that she reported the incident and that, in order to verify the accuracy of the facts, she was among other things subjected to a polygraph test. It has further been established that, in view of the seriousness of the incident, you communicated your voluntary resignation from the company, and subsequently retracted it, a retraction which we honoured.
The above-described conduct constitutes a very serious infringement under section 17 of Article 61 of the General Chemical Industry collective bargaining agreement, read in conjunction with Article 54.2(g) of the Workers' Statute. Management has therefore decided to impose the sanction of disciplinary dismissal with immediate effect. Given that you were on secondment in South Africa whilst maintaining your employment link with BASF Poliuretanos Iberia SA, and that you have been notified of the termination of your secondment with effect from 31 December, after which date you would have resumed providing services to the Spanish company, we hereby inform you that, pursuant to the secondment agreement, we will arrange for reimbursement of the relocation costs for you and your family to return to Spain, net of any advances paid to cover certain expenses in South Africa, and will pay your salary for the period 1 to 15 January 2013 inclusive.'
Tenth.– On 30/10/2012, while the claimant was conducting a business meeting with his subordinate, Ms Eloisa, at the time Head of Marketing and Corporate Communications at the BASF Polyurethanes South Africa branch, he took her by the hand and kissed her on the face (claimant's testimony at judicial hearing).
Eleventh.– The mandatory pre-litigation conciliation procedure before the Individual Conciliation Service was completed (case file).
THIRD.– The claimant gave notice of appeal against the above ruling, filed it within the prescribed time limit, and BASF Poliuretanos Iberia, S.A. (public limited company), which was served with a copy, filed an opposition, after which the case file was forwarded to this Court, giving rise to the present proceedings.
LEGAL GROUNDS
FIRST
The claimant appeals against the ruling that declared his dismissal to be fair. Relying on Article 193(b) of the LRJS (Spanish Labour Courts Procedure Act), he seeks amendment of two proven facts. Under Article 193(c) of the same provision, he raises six grounds on which he contends the ruling infringes substantive law. He concludes by requesting a declaration that the dismissal of 31.12.2012 was unfair, and, in the alternative, that the dismissal of 15.1.2013 was unfair, with the corresponding legal consequences in each case, based on a daily salary of €584.67.
Nevertheless, the ruling under appeal declared that the Spanish courts lack jurisdiction over the claims brought against BASF POLYURETHANES SOUTH AFRICA (PTY) LTD. This is a matter of public policy which this Court must address even though that ruling has not been challenged on appeal.
Article 25.2.1 of the LOPJ (Organic Law of the Judiciary, RCL 1985, 1578 and 2635) provides that 'in employment matters, Spanish courts and tribunals shall have jurisdiction over rights and obligations arising from an employment contract where the services were provided in Spain or the contract was entered into in Spanish territory; where the defendant is domiciled in Spanish territory or has an agency, branch, delegation or any other form of representation in Spain; or where both the employee and the employer hold Spanish nationality, regardless of the place where services are provided or the contract was concluded (…)'.
In the present case, the claimant's employment contract was concluded in Spanish territory, irrespective of any particular conditions that may have been agreed between the claimant and the South African company. Indeed, clause 12 of the contract expressly stated that it was governed by Spanish law and that the parties submitted to the jurisdiction of the courts of Barcelona. Moreover, BASF POLYURETHANES SOUTH AFRICA (PTY) LTD belongs to the same group as BASF POLIURETANOS IBERIA SA, which is domiciled in Spain, and with which the claimant's employment relationship was placed in 'latent' (suspended) status, as the contract describes it. For all these reasons, the Spanish employment courts have jurisdiction to hear the claimant's claim against that company.
SECOND
As a factual amendment, the claimant requests that certain additional details be added to the fourth proven fact, relating to the value of the accommodation and the annual education costs for his school-age children. This request cannot be granted, however, because the relevant data do not emerge directly and clearly from the documents cited: those documents are written in English without a certified translation, and consist of invoices printed by a school in Johannesburg together with handwritten receipts whose author has not been identified.
In relation to the sixth proven fact, an addition is also requested: specifically, several lines describing Ms Eloisa's conduct following the events in question, as well as the fact that the claimant apologised to her. This is based on a translation of the results of the polygraph test that she underwent, a test which cannot be treated as documentary evidence, since it amounts to a statement by a potential witness and has therefore not been subjected to adversarial examination.
THIRD
Relying on Article 193(c) of the LRJS, the following grounds of appeal are raised: 1) infringement of Articles 55 and 2 of the Workers' Statute (ET) (RCL 1995, 997), read in conjunction with Article 62 of the Chemical Industry collective bargaining agreement for 2011–2012, together with several judgments of the High Courts of Justice (which do not constitute binding case law: Article 1.6 of the Civil Code (LEG 1889, 27)) and judgments of the Supreme Court; 2) infringement of Articles 61.17 of the said collective bargaining agreement, 54.2(g) of the ET (RCL 1995, 997) and 7.1 of Organic Law 3/2007 (RCL 2007, 586) on Effective Equality between Men and Women, citing judgments of the Constitutional Court nos. 224/1999 (RTC 1999, 224) and 136/2001 (RTC 2001, 136); 3) the graduated-sanctions doctrine; 4) infringement of Article 60 of the ET and Article 64 of the collective bargaining agreement, on the basis that the alleged misconduct referred to in the dismissal letter was time-barred; 5) infringement of Article 60.2 of the ET and Article 64 of the collective bargaining agreement, together with the ruling of the Supreme Court of 15.4.1994 (RJ 1994, 3243), on the basis that the preliminary proceedings conducted by the company did not have the effect of interrupting the limitation period; and, finally, 6) infringement of Article 26 of the ET, on the basis that the claimant's salary was that proposed in the requested amendment to the fourth proven fact.
FOURTH
In the interests of procedural logic, we shall first address the allegation that the misconduct identified in the dismissal letter is time-barred, namely, the fourth and fifth grounds of appeal: infringement of Article 60 of the ET (RCL 1995, 997) and Article 64 of the collective bargaining agreement on the basis that the misconduct referred to in the dismissal letter is time-barred; and infringement of Article 60.2 of the ET and Article 64 of the collective bargaining agreement, together with the ruling of the Supreme Court of 15.4.1994 (RJ 1994, 3243), on the basis that the preliminary proceedings conducted by the company had no effect of interrupting the limitation period.
Article 60 of the ET distinguishes between two limitation periods: a 'short' period of sixty days from the date on which the company became aware of the misconduct, and a 'long' period of six months from the date on which it was committed. In the present case, the dispute concerns the former, and specifically the dies a quo (the date from which time begins to run).
The appellant argues that the limitation period should begin on 31 October 2012, since the events occurred on 30 October and the following day the person affected notified one of the company's managers. On that basis, by the time the disciplinary proceedings were initiated on 4 January 2013, the alleged misconduct would have been time-barred.
However, in the light of established case law on this point, those arguments cannot be accepted. The Supreme Court has consistently held (see, for example, the judgment of 22 May [sic] 1996 (RJ 1996, 4607), RCUD 2379/1995): 'numerous judgments of this Chamber, ruling on cases of dismissal for breach of good faith or abuse of trust, have established the principle that the limitation period under Article 60.2 of the ET does not begin to run from the date on which the company has a superficial, general or merely indicative knowledge of the misconduct; rather, where the nature of the facts so requires, the period commences on the date on which the company has full, complete and precise knowledge of those facts.' Furthermore, the Supreme Court judgment of 24 September 1989 established that such knowledge must rest with the body or person holding the power to impose sanctions.
In the present case, the person affected by the claimant's conduct reported the events to the Head of the Occupational Risk Management Department (G.W.) and offered to undergo a polygraph test. In the sworn statement to which the appellant himself refers in his appeal (folio 62 of the case file), she states that 'the following morning (Wednesday) I informed G.W. of the incident in a private meeting, having previously contacted him at BASF BCS by telephone. G.W. is Head of the Occupational Risk Management Department; I asked to meet with him about a sensitive matter (based on my previous dealings with the human resources, compliance and group managing director departments, I do not trust any department given the sensitivity of the matter, and I cannot rely on objective advice). I was with G. from 8.30 and we discussed the approach for addressing the matter as a whole. G. also called the company's lawyer, Kgadi; I indicated that I first wished to undergo a polygraph test and that we could then proceed with the case.' This approach reflects the fact that the person affected, wishing to ensure that her account would not be called into question, sought to corroborate it by means of such a test, and the company agreed to this course of action (which was reasonable both as a mark of respect for the alleged victim and as a way of avoiding any hasty response in a matter that was sensitive both on account of the facts themselves and the seniority of those involved). Accordingly, it was not until she had undergone the polygraph that the events came to the knowledge of the person or body with the authority to take the appropriate decision: the human resources management (as provided in Article 108 of the applicable collective bargaining agreement).
In addition, and in relation to that same provision, it sets out a 'Protocol for the Prevention and Management of Harassment Situations', one of the principles of which (Article, principle no. 4) is 'the guarantee of confidentiality and the protection of the privacy and dignity of the persons involved, ensuring at all times that the identity and personal circumstances of the person making the complaint are preserved.' That principle accordingly required the utmost discretion, and that the company should wait for the victim to complete the test before taking whatever action it considered appropriate. Furthermore, the provision of the collective bargaining agreement provides for an 'informal procedure' (described as advisable though optional for the victim) lasting a maximum of ten days with the aim of 'reaching a solution acceptable to both' parties involved; only after that ten-day period does the so-called 'formal procedure' commence, which must be conducted by the persons responsible for human resources and must be notified to the employees' representatives, though only if the affected person's express consent has been obtained. Finally, the collective bargaining agreement also provides for an expedited procedure where the conduct is classified as a very serious offence, as is the case here (Article 62.2).
For all these reasons, and given the requirement of confidentiality and the possibility of following the optional procedures provided for, the dies a quo could not in any event be earlier than 12/11/2012, the date on which Eloisa underwent the polygraph test. In conclusion, when the claimant received the disciplinary charge sheet on 4 January 2013 and the preliminary procedure was initiated by the company, the alleged misconduct was not time-barred.
FIFTH
The argument that the preliminary proceedings conducted by the company prior to serving the dismissal letter, that is, the disciplinary investigation, should not be regarded as interrupting the limitation period is advanced on the basis that it was a mere formality and that the company had already accepted Ms Eloisa's version of events as true. This argument likewise cannot succeed.
As noted in the previous ground, the collective bargaining agreement provides for several procedures, each serving a different purpose. Specifically, as regards the disciplinary proceedings under Article 62, subsection A) sets out the following steps: '1. The company's management shall notify the employee concerned in writing of the acts allegedly committed, specifying the provisions potentially breached. 2. The written notification shall state the time available to the employee to submit a written response or statement of defence, which shall be no less than 3 days. 3. Once the period for submitting a response has elapsed, the company's management, having assessed any submissions made, shall notify the employee in writing of the outcome of the proceedings, stating, where applicable, the final classification of the offence as minor, serious or very serious, the specific paragraph of Articles 59, 60 or 61 under which it is categorised, together with the sanction imposed and its effective date. If no sanctionable conduct is found, the employee shall likewise be notified in writing that the proceedings have been closed. 4. The company shall inform the employees' representatives of all steps taken at the same time as notifying the employee concerned, and shall also notify the trade union delegates of the union to which the employee belongs, where the company is aware of that affiliation. In any event, the company shall notify the employees' representatives in writing, at the same time as the employee concerned, of any sanction it imposes.'
The fundamental purpose of these proceedings is therefore to afford the person alleged to have committed the acts an opportunity to be heard, so that the person responsible for the final management decision can impartially assess their account and thereby not only determine whether the conduct occurred but also evaluate its gravity in the light of the various circumstances that each party may have chosen to set out.
These proceedings are therefore not a 'mere formality', and consequently the limitation period is suspended for the duration of the disciplinary proceedings provided for under the collective bargaining agreement.
In conclusion, for all the reasons set out in this and the preceding legal ground, the misconduct attributed to the claimant is not time-barred.
SIXTH
Turning to the first ground raised on appeal under Article 193(c) of the LRJS, namely, infringement of Articles 55 and 2 of the ET (RCL 1995, 997), read in conjunction with Article 62 of the Chemical Industry collective bargaining agreement for 2011–2012, together with various judgments of the High Courts of Justice (which do not constitute binding case law: Article 1.6 of the Civil Code (LEG 1889, 27)) and judgments of the Supreme Court, the appellant argues that two separate dismissals occurred (one on 31.12.2012 and another on 15.1.2013), and that the second does not satisfy the requirements of Article 55.2 of the ET because the salary accruing between the two dates was not placed at the claimant's disposal at that time, but only on 29 January 2013.
This ground cannot succeed. In the first place, this is a new argument that was not raised by the claimant at the hearing and is therefore barred under Article 233 of the LRJS, pursuant to which this Court must not admit from the parties 'factual allegations that do not emerge from the case file'.
Moreover, the requirement must be regarded as satisfied, given that the company offered in the dismissal letter to pay the claimant's salary for the period 1 to 15 January 2013, together with the relocation costs to Spain for the employee and his family, and the claimant has not alleged that these offers were not fulfilled.
SEVENTH
The appeal also challenges the characterisation of the conduct as 'sexual harassment' and denies that the claimant committed any infringement. To this end, the appellant raises the second ground under Article 193(c) of the LRJS, alleging infringement of Articles 61.17 of the said collective bargaining agreement, 54.2(g) of the ET (RCL 1995, 997) and 7.1 of Organic Law 3/2007 (RCL 2007, 586) on Effective Equality between Men and Women, citing judgments of the Constitutional Court nos. 224/1999 (RTC 1999, 224) and 136/2001 (RTC 2001, 136).
Workplace sexual harassment constitutes a violation of the rights recognised in Articles 10.1(c) and 18.1 of the Spanish Constitution, in that it represents an attack on an aspect of the person as intimate as their sexuality. In employment law, the ET, in Article 4.2(e), includes among employees' rights in the employment relationship 'protection against verbal and physical offences of a sexual nature', as an expression of the right to dignity and privacy of the employee or worker.
Article 7.1 of Organic Law 3/2007 on Effective Equality between Men and Women defines sexual harassment as 'any verbal or physical conduct of a sexual nature that has the purpose or effect of violating the dignity of a person, in particular when it creates an intimidating, degrading or offensive environment'.
As regards the applicable collective bargaining agreement, Article 61.17 provides that 'sexual harassment is identifiable by any situation in which verbal, non-verbal or physical unwanted conduct of a sexual nature occurs with the purpose or effect of violating the dignity of a person, in particular when it creates an intimidating, hostile, degrading, humiliating or offensive environment.' Article 108 further states: 'In accordance with Article 2.1(d) of Directive 54/2006 of 5 July (LCEur 2006, 1696) and Article 7 of Organic Law 3/2007 of 21 [sic] March (RCL 2007, 586), sexual harassment at work is understood as any situation in which verbal, non-verbal or physical conduct of a sexual nature occurs with the purpose or effect of violating the dignity of a person, in particular when it creates an intimidating, hostile, degrading, humiliating or offensive environment.'
In the light of these legal provisions, sexual harassment can be distinguished from other forms of harassment (moral harassment, discriminatory harassment and, within that category, harassment on grounds of sex) by the presence of a sexual motivation, notwithstanding the fact that in practice some or all of these elements, and in particular discriminatory intent, may be intertwined (as Article 7.4 of Organic Law 3/2007 makes clear).
Specifically, from Articles 4.2(c) of the
