Labour Court Database __________________________________________________________________________________ File Number: EED9311 Case Number: EEO953 Section / Act: S27EE Parties: A COMPANY (Represented by MCDERMOTT, CREED AND MARTYN SOLICITORS) - 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:
The representatives of the Company objected to the constitution of
the Labour Court on the grounds that it was the same division
(with the exception of the employer member) which had heard a
similar case against the Company on a previous occasion. They
claimed that they had been given an assurance that this case would
be heard by another division. The representatives of the claimant
stated that they had no recollection of any such assurance being
given. The Court pointed out that no such assurance had been
given.
Having considered the objection, the Court decided that there was
no valid basis for it, and that it would proceed to hear the case.
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 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 harassment of her by
the Head Chef constituted discrimination within the meaning of the
sub-section, which in turn led to the constructive dismissal.
The Court heard evidence from the complainant and from witnesses
on her behalf, and submissions were made on behalf of the Company.
The Court is satisfied, on the evidence, that there was behaviour
by the Head Chef towards the complainant which was lewd, improper
and sexually explicit. The Court finds that such conduct would
not have been addressed to a male worker, and was addressed to the
complainant because she was a woman.
The Court is further satisfied that such behaviour continued
throughout the period of the complainant's employment, despite her
having made clear to the Head Chef that his conduct was neither
welcome nor acceptable.
The Court is satisfied that the Head Chef reduced the
complainant's hours of work, and that she was left with no
alternative but to leave the employment.
The Court concludes that the complainant was indeed constructively
dismissed by virtue of the sexually harassing and discriminatory
treatment to which she had been subjected.
In its defence, it was contended on behalf of the Company that it
could not be vicariously liable for the actions of the Head Chef.
No complaint had been made to the Company Director, despite the
fact that he visited the restaurant premises regularly. If the
employee had a complaint, she should have so advised the Director,
it was alleged.
At the same time, it was contended that the Company had suspended
the Head Chef after complaints had been made to the Gardai about
his behaviour, and only reinstated him after it was clear that no
criminal proceedings were to be taken against him.
The Court is satisfied that the workers, including the
complainant, were too intimidated by the Head Chef to complain
about his behaviour to the Director of the Company. This in
itself shows that the Head Chef had been given total control over
what happened in the workplace. But even when the Director did
become aware of a problem, and took action by suspending the Head
Chef, the suspension was lifted without any attempt having been
made on the part of the Director to investigate the matters for
himself or to take action to protect the workers.
It is quite clear to the Court that the Head Chef had been given
an authority over the staff by the Company which the Company did
not seek to control. Having given him responsibility over the
workplace, it must accept the consequences as employer if he
abused his position of responsibility, which in this case the
Court is satisfied he did.
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 £5,000 is an appropriate and reasonable amount. The
Court therefore determines that the Company should pay £5,000 to
the claimant. An Order to that effect will be issued by the
Court.
Division: Mr McGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
EED9311 ORDER NO. EEO395
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES:
A COMPANY
(REPRESENTED 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 as a full-time
dish washer on the 24th November, 1992. Her employment
ceased on the 7th March, 1993. The worker claims that
during the period of her employment she became the focus
of sexual harassment by members of staff and in
particular by 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 11th October, 1995. (The most suitable date
available to the parties).
WORKER'S ARGUMENTS:
3. 1. During the period of her employment as a dishwasher and
kitchen hand the worker was subjected to unwarranted
sexual harassment by the Head Chef which consisted of
rude, improper and sexually explicit suggestions and
physical touching (details supplied to the Court).
2. The worker totally rejected these advances.
Subsequently her hours of work were significantly
reduced by the Head Chef. Her refusal to succumb to his
sexual advances resulted ultimately in the worker having
to terminate her employment on 7th March, 1993.
3. The Company was negligent in failing to provide a safe
environment for the claimant in which to work. It
failed to adequately supervise the managerial staff,
failed to institute and maintain an adequate complaint
system and failed to maintain adequate control over the
supervisory staff. The Company reduced the worker's
hours significantly forcing her to terminate her
employment.
4. As a result of incidents complained of the worker
concerned suffered depression and anxiety. She attended
her General Practitioner who issued her a sick
certificate following an examination and found her to be
upset and agitated. Professional counselling was
advised. Her sleep pattern was disrupted; she continues
to suffer from depression. The worker has been unable
to work since that time. She 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
the employment of her own volition. The worker is not
entitled to compensation.
ORDER:
The representatives of the Company objected to the constitution of
the Labour Court on the grounds that it was the same division
(with the exception of the employer member) which had heard a
similar case against the Company on a previous occasion. They
claimed that they had been given an assurance that this case would
be heard by another division. The representatives of the claimant
stated that they had no recollection of any such assurance being
given. The Court pointed out that no such assurance had been
given.
Having considered the objection, the Court decided that there was
no valid basis for it, and that it would proceed to hear the case.
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 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 harassment of her by
the Head Chef constituted discrimination within the meaning of the
sub-section, which in turn led to the constructive dismissal.
The Court heard evidence from the complainant and from witnesses
on her behalf, and submissions were made on behalf of the Company.
The Court is satisfied, on the evidence, that there was behaviour
by the Head Chef towards the complainant which was lewd, improper
and sexually explicit. The Court finds that such conduct would
not have been addressed to a male worker, and was addressed to the
complainant because she was a woman.
The Court is further satisfied that such behaviour continued
throughout the period of the complainant's employment, despite her
having made clear to the Head Chef that his conduct was neither
welcome nor acceptable.
The Court is satisfied that the Head Chef reduced the
complainant's hours of work, and that she was left with no
alternative but to leave the employment.
The Court concludes that the complainant was indeed constructively
dismissed by virtue of the sexually harassing and discriminatory
treatment to which she had been subjected.
In its defence, it was contended on behalf of the Company that it
could not be vicariously liable for the actions of the Head Chef.
No complaint had been made to the Company Director, despite the
fact that he visited the restaurant premises regularly. If the
employee had a complaint, she should have so advised the Director,
it was alleged.
At the same time, it was contended that the Company had suspended
the Head Chef after complaints had been made to the Gardai about
his behaviour, and only reinstated him after it was clear that no
criminal proceedings were to be taken against him.
The Court is satisfied that the workers, including the
complainant, were too intimidated by the Head Chef to complain
about his behaviour to the Director of the Company. This in
itself shows that the Head Chef had been given total control over
what happened in the workplace. But even when the Director did
become aware of a problem, and took action by suspending the Head
Chef, the suspension was lifted without any attempt having been
made on the part of the Director to investigate the matters for
himself or to take action to protect the workers.
It is quite clear to the Court that the Head Chef had been given
an authority over the staff by the Company which the Company did
not seek to control. Having given him responsibility over the
workplace, it must accept the consequences as employer if he
abused his position of responsibility, which in this case the
Court is satisfied he did.
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 £5,000 is an appropriate and reasonable amount. The
Court therefore determines that the Company should pay £5,000 to
the claimant. An Order to that effect will be issued by the
Court.
~
Signed on behalf of the Labour Court
30th November, 1995 Tom McGrath
T.O'D./D.T. _______________
Deputy Chairman