Labour Court Database __________________________________________________________________________________ File Number: EED9312 Case Number: EEO942 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;EILEEN O'LEARY, B.L.,;INSTRUCTED BY MULLANEYS, SOLICITORS |
Alleged constructive dismissal of the worker in contravention of Section 27 of the Employment Equality Act, 1977.
Recommendation:
This complaint is made under Section 27 of the Employment Equality
Act, 1977 (the Act). It is therefore a dispute about whether or
not there was a contravention of Section 3(4) of the Act in
relation to the dismissal of the complainant. She claims that she
was constructively dismissed in that she had no alternative but to
leave the employment due to the treatment she received. Section
3(4) of the Act provides that a person will be taken to
discriminate against an employee if he does not provide the same
terms of employment and working conditions to that employee as to
another person. The complainant claims that the harassment of her
by a Head Chef constituted discrimination within the meaning of
the subsection, which in turn led to the constructive dismissal.
The Court, having heard the evidence of the complainant, and
witnesses on her behalf, and having heard the evidence of a
Director of the Company, and another worker on behalf of the
Company, is satisfied that there was conduct by the Company's Head
Chef towards the complainant which was lewd, improper and sexually
explicit, conduct which would not have been addressed to a male
worker and which was addressed to the complainant because she was
a woman. The Court is also satisfied that such behaviour
continued throughout the period of her employment. It was
accepted by the Company that the Head Chef had managerial
responsibility for the restaurant.
The Court is further satisfied that the complainant made clear to
the Head Chef that his conduct was not welcome or acceptable, and
that, as a result of her attitude to him, the Head Chef reduced
the complainant's rostered hours of work, and subsequently moved
her to more menial work.
The Court concludes that the complainant was left with no
alternative but to leave the employment, and that she was indeed
constructively dismissed by virtue of the sexually harassing
treatment to which she had been subjected.
On the question of vicarious liability, the Court has considered
seriously the arguments made by the employer. The Company made
the case that not only was no complaint made to the Company
Director, who visited the premises several times a week, but that
the conduct of the Head Chef was outside the scope of his
employment, and that the Company could not be made liable
therefor. It relied on the recent case of Midland Health Board v.
B.C. and The Labour Court (reported in Employment Law Reports Vol.
5 No. 1 1994) and the judgement of Mr. Justice Costello, in which
a decision of the Labour Court was set aside on a point of law.
The Court rejects the arguments made on behalf of the employer,
and is satisfied that the Company is vicariously liable for the
behaviour of the Head Chef. He was responsible for the hiring and
direction of staff; he had authority to dismiss staff. He had
control over what occurred in the workplace, and that control had
been given to him by the Company; he represented the Company
vis-a-vis the other employees. The Company must therefore take
responsibility if he abuses his position of power which, in this
case, he did. The Court is satisfied that in fact the workers,
including the complainant were too intimidated by the Head Chef to
complain about his behaviour to the Director of the Company. It
was the Company which had placed the Head Chef in the position of
power which he held, and from which he carried on his
intimidation. It must therefore be liable for his actions while
exercising that power, even though it was not aware of those
actions at the relevant time. The actions committed by the Head
Chef were clearly committed within the scope of his employment, in
that he was responsible for the supervision and management of the
staff, and he chose to exercise those responsibilities in such
manner as the Court has found amounted to sexual harassment. It
was in the performance of his own duties that he harassed the
employee, and that harassment amounted to discrimination within
the meaning of Section 3(4) of the Act.
The Court therefore finds that there was a contravention of
Section 3(4) in relation to the constructive dismissal of the
complainant. In considering the question of remedy the Court is
satisfied, having regard to all the circumstances of the case,
that a sum of #4,000 is an appropriate and reasonable amount. The
Court therefore, determines that the Company should pay #4,000 to
the claimant. An Order to that effect will be issued by the
Court.
Division: MrMcGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
EED9312 ORDER NO. EEO294
EMPLOYMENT EQUALITY ACT 1977
PARTIES:
A COMPANY
(REPRESENTED BY BARRY FINLAY, B.L.,
INSTRUCTED BY McDERMOTT, CREED AND MARTYN, SOLICITORS)
AND
A WORKER
(REPRESENTED BY EILEEN O'LEARY, B.L.,
INSTRUCTED BY MULLANEYS, SOLICITORS)
SUBJECT:
1. Alleged constructive dismissal of the worker in contravention
of Section 27 of the Employment Equality Act, 1977.
BACKGROUND:
2. 1. The Company operates a restaurant, bar and nightclub.
The worker concerned commenced employment with the
Company as a full-time waitress in the restaurant on the
13th December, 1992. After a number of weeks she was
transferred to the kitchen to work as a kitchen help.
Her employment ceased on the 25th February, 1993. The
worker claims that during the period of her employment
she was continually sexually harassed by her immediate
superior, the Head Chef. The worker further claims that
she was forced to resign from her employment because of
sexual harassment.
2. The Company rejected the allegations of sexual
harassment and constructive dismissal.
3. On the 12th October, 1993, the worker, through her legal
adviser, referred the complaint to the Labour Court
under Section 27 of the Employment Equality Act, 1977.
The Court investigated the complaint at a hearing held
on the 14th April, 1994.
WORKER'S ARGUMENTS:
3. 1. Throughout the entire period of her employment the
worker was subjected to unwarranted sexual harassment by
the Head Chef which included lewd, improper and sexually
explicit suggestions and physical touching. (Details
supplied to the Court).
2. The worker rejected these advances and as a result her
rostered working hours were reduced and she was demoted
by the Head Chef as a consequence of which actions she
was ultimately obliged to terminate her employment.
3. The Company was negligent in that it failed to provide a
safe environment for the claimant in which to work in,
failed to adequately control and supervise managerial
staff and failed to institute and maintain an adequate
complaint system.
4. As a result of the incidents complained of the worker
suffered depression anxiety and attended her doctor.
She was prescribed anti-depressants and advised to
obtain professional counselling
5. The worker has been unable to obtain new employment and
has been withdrawn and depressed. She lacks the
confidence to work in male company. The worker is
seeking appropriate compensation.
COMPANY'S ARGUMENTS:
4. 1. The Company refutes the allegations of the worker in
their entirety.
2. The worker, during the period of her employment, did not
make a complaint to the owner of the Company about
sexual harassment by the Head Chef.
3. The Company bears no responsibility in law for the
alleged act or acts, if any, of their employee (the Head
Chef), as such acts (if they occurred) were not within
the scope of the employment and would constitute acts
for which the Company is not vicariously liable.
4. The worker was not dismissed by the Company, she left of
her own volition. The worker is not entitled to
compensation.
ORDER:
This complaint is made under Section 27 of the Employment Equality
Act, 1977 (the Act). It is therefore a dispute about whether or
not there was a contravention of Section 3(4) of the Act in
relation to the dismissal of the complainant. She claims that she
was constructively dismissed in that she had no alternative but to
leave the employment due to the treatment she received. Section
3(4) of the Act provides that a person will be taken to
discriminate against an employee if he does not provide the same
terms of employment and working conditions to that employee as to
another person. The complainant claims that the harassment of her
by a Head Chef constituted discrimination within the meaning of
the subsection, which in turn led to the constructive dismissal.
The Court, having heard the evidence of the complainant, and
witnesses on her behalf, and having heard the evidence of a
Director of the Company, and another worker on behalf of the
Company, is satisfied that there was conduct by the Company's Head
Chef towards the complainant which was lewd, improper and sexually
explicit, conduct which would not have been addressed to a male
worker and which was addressed to the complainant because she was
a woman. The Court is also satisfied that such behaviour
continued throughout the period of her employment. It was
accepted by the Company that the Head Chef had managerial
responsibility for the restaurant.
The Court is further satisfied that the complainant made clear to
the Head Chef that his conduct was not welcome or acceptable, and
that, as a result of her attitude to him, the Head Chef reduced
the complainant's rostered hours of work, and subsequently moved
her to more menial work.
The Court concludes that the complainant was left with no
alternative but to leave the employment, and that she was indeed
constructively dismissed by virtue of the sexually harassing
treatment to which she had been subjected.
On the question of vicarious liability, the Court has considered
seriously the arguments made by the employer. The Company made
the case that not only was no complaint made to the Company
Director, who visited the premises several times a week, but that
the conduct of the Head Chef was outside the scope of his
employment, and that the Company could not be made liable
therefor. It relied on the recent case of Midland Health Board v.
B.C. and The Labour Court (reported in Employment Law Reports Vol.
5 No. 1 1994) and the judgement of Mr. Justice Costello, in which
a decision of the Labour Court was set aside on a point of law.
The Court rejects the arguments made on behalf of the employer,
and is satisfied that the Company is vicariously liable for the
behaviour of the Head Chef. He was responsible for the hiring and
direction of staff; he had authority to dismiss staff. He had
control over what occurred in the workplace, and that control had
been given to him by the Company; he represented the Company
vis-a-vis the other employees. The Company must therefore take
responsibility if he abuses his position of power which, in this
case, he did. The Court is satisfied that in fact the workers,
including the complainant were too intimidated by the Head Chef to
complain about his behaviour to the Director of the Company. It
was the Company which had placed the Head Chef in the position of
power which he held, and from which he carried on his
intimidation. It must therefore be liable for his actions while
exercising that power, even though it was not aware of those
actions at the relevant time. The actions committed by the Head
Chef were clearly committed within the scope of his employment, in
that he was responsible for the supervision and management of the
staff, and he chose to exercise those responsibilities in such
manner as the Court has found amounted to sexual harassment. It
was in the performance of his own duties that he harassed the
employee, and that harassment amounted to discrimination within
the meaning of Section 3(4) of the Act.
The Court therefore finds that there was a contravention of
Section 3(4) in relation to the constructive dismissal of the
complainant. In considering the question of remedy the Court is
satisfied, having regard to all the circumstances of the case,
that a sum of #4,000 is an appropriate and reasonable amount. The
Court therefore, determines that the Company should pay #4,000 to
the claimant. An Order to that effect will be issued by the
Court.
~
Signed on behalf of the Labour Court
17th June, 1994 Tom McGrath
T.O.D./M.M. _______________
Deputy Chairman
Note
Enquiries concerning this Order should be addressed to Mr. Tom
O'Dea, Court Secretary.