EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
An Employee UD1086/2014
- Claimant MN542/2014
against
An Employer
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O’Leary B.L.
Members: Mr. P. Pierce
Mr. S. O’Donnell
heard this claim at Dublin on 21st September 2015
and 23rd November 2015
Representation:
Claimant: Eamonn O’Hanrahan, O’Hanrahan & Co., Solicitors, Lexington House,
71 Ballybough House, Fairview, Dublin 3
Respondent: Mr. James Nerney BL instructed by:
Clerkin Lynch Solicitors, 30 Molesworth Street, Dublin 2
The determination of the Tribunal was as follows:-
Background:
The claimant was employed from the 29th February 2012 until his employment terminated for gross misconduct on the 5thFebruary 2014 as a Kitchen Porter in a South Dublin restaurant. He was in receipt of a weekly wage of €360.00
Respondent’s Case:
The Head Chef (HC) gave evidence. He told the Tribunal that there were no issues with the claimant until after six months into his employment. The claimant would have to be requested to carry out tasks a number of times but he eventually did, he could converse in his Polish tongue even though English was the language to be spoken on the premises. The claimant was also heard to have made snide comments about his colleagues.
HC told the Tribunal that he had spoken to the claimant on a number of occasions on a one to one basis regarding these issues but did not issue any formal warnings to the claimant.
On cross-examination HC stated, when asked, that there was a disciplinary procedure in place. (This and the claimant’s contract of employment were opened to the Tribunal.)
One of the co-owners (CO) gave evidence. It was brought to her attention that staff had issues with the claimant. CO told the Tribunal “It was a battle to get him to do anything.” A number of verbal warnings were given and one final written warning were issued to the claimant.
On the 5th August 2013 the second Chef (SC) informed her that their colleague, the Commis Chef (CC), had told him an incident had occurred between her and the claimant. CO explained to the Tribunal that at the time the restaurant’s washing machines were temporarily located in the ladies changing room. The Kitchen Porters would have to enter this room to fetch the clean linen but where supposed to knock first to see if the room was empty. Only when the locker room was empty could they enter to carry out their duties. On the day in question the claimant had knocked on the door, CC was inside changing and told the claimant she was inside. The claimant made some derogatory remarks towards her. CC was upset and scared. CO spoke to CC about the incident CC informed her it was not the first such instance regarding the claimant. On a previous occasion he had touched CC’s bottom while passing her on a narrow section of the staircase.
CO told the Tribunal that she did not want to dismiss the claimant and having discussed the matter with her business partner (BP) she asked CC would she be willing to continue working with the claimant if she spoke to him about his behaviour. CC agreed she would. CO spoke to the claimant, advised him he should only discuss work issues with his female colleagues and issued him with a final written warning. The claimant laughed when receiving the warning and said it had only been a joke.
CO later discovered similar issues had arisen with another female staff member – SM. CO told the Tribunal that on reflection she should have dismissed the claimant there and then as other serious issues would later arise concerning the claimant. As time passed she spoke to CC and SM and there did not seem to be any further issues concerning the claimant’s behaviour.
On the 4th February 2014 CO became aware of an incident with the claimant, a Manager (MGR) and a female member of staff (AF). MGR and AF were speaking at the back of house regarding a business matter. The claimant walked pass and said something in Polish to AF. AF re-acted to what he said and when asked, she translated it for MGR. CO reiterated the claimant had already been reprimanded for speaking in Polish in the restaurant. When CO spoke to AF regarding the matter she was shocked to discover the claimant had been sexually harassing AF for months and had been making derogatory remarks about other female colleagues.
CO spoke to her business partner – BP and the decision was made to dismiss the claimant. The situation could not continue and there was no alternative. BP informed the claimant the following day. Following his dismissal the claimant attended the restaurant on two occasions. Once when BP explained to him why he was dismissed and the second to request a form to be signed.
On cross-examination CO said there were two notes in the restaurant diary of verbal warnings given to the claimant. When put to her, CO said that she had felt she had investigated the matter fully before making the decision to dismiss the claimant.
SM gave evidence. She was employed as a Pastry Chef and had worked with the claimant. SM told the Tribunal that she found the claimant difficult to work with. She did not like the way he looked at her and how he made comments to her in Polish. The wash up area in the kitchen was a narrow area and if she needed to pass him he would not move but would rub up against her. She found it an invasion of her personal space. It made her angry and she had told him in no uncertain terms where to go but he just laughed and walked away.
On another occasion she was changing in the ladies locker room when he tried to enter. She told the Tribunal that she had to lean against the door to prevent him entering. She did not report either incident to management.
When CC informed her what had occurred in the ladies locker room with the claimant in August 2013 she advised CC to inform to the Head Chef.
On cross-examination SM said she had never reported the incidents that had occurred with her as she felt she could deal with it herself. When asked, SM could not give specific dates or times for the incidents she have spoken of in sworn evidence to the Tribunal.
CC gave evidence. She first commenced employment with the respondent on a part-time basis in December 2012. She began working full-time hours in May 2013. CC told the Tribunal she did not have many dealings with the claimant at first, however, as her hours changed to full-time she began working more often with him and found him to be overfriendly. She did not speak to him much and tried to avoid eye contact even when he made comments to her. Sometimes these comments were in Polish and he smirked while saying them.
In July 2013 an incident occurred on the narrow staircase. CC was on her way down the stairs, the claimant on his way up. The claimant stood in the narrow part of the stairs and as CC passed him he touched her bottom. She was shocked but did not say anything to him as she said she was scared.
A month later she was in the ladies changing room when the claimant attempted to enter the room. CC told him she was inside but again he tried to enter. The claimant then asked was she naked and could he help her. CC quickly left the locker room. When she went arrived home she informed her parents who advised her to report it to management.
The following day she spoke to SM who advised her to speak to the Head Chef. CO then approached her when she became aware of the situation. CO asked her would she be prepared to continue working with claimant. CC replied she would if he would desist his actions and her name would not been mentioned when the claimant was spoken to. CC told the Tribunal that following this conversation with CO the claimant seemed to “quieten down”.
On cross-examination CC said she had not mentioned to the claimant that his actions made her feel uncomfortable. When put to her she said there were no problems with other male staff trying to enter the ladies locker room when it was occupied. She agreed that she had continued to work alongside the claimant for six months after the August incident and she had made no further complaints against him.
AF gave evidence. She told the Tribunal the claimant would make personal comments towards her telling her she was beautiful. She replied telling him she had a husband and two kids but he replied that it didn’t matter to him.
In July 2012 the claimant asked AF could she get a job in the restaurant for a member of his family. When she told him she could not, he began treating her differently. He was rude towards her and made comments towards her in Polish, she and the claimant are of Polish origin. The claimant also made rude comments about the other female staff. AF asked him to cease. AF told the Tribunal that the claimant’s body language also made her feel uncomfortable. AF spoke to her husband about the claimant and his behaviour and he advised her to report him to management. AF did not but requested a move outside to the restaurant area to work as a waitress. She wanted to get out of the kitchen where the claimant worked.
On the 1st February 2014 she was working in the very busy restaurant. AF told the Tribunal that she had had a particularly bad service and was upset about it. She and the Manager (MD) on duty spoke by the stairs at the side of the kitchen. The claimant approached them, brushed past her and said “don’t let them get to you” in Polish. AF said she was shocked, MD asked what the claimant had said and if she was okay. AF said all she wanted to do was get out of there. She finished her shift and went home.
A few days later CO contacted her to ascertain what had occurred on the previous Saturday evening between her and the claimant. When telling CO what happened she also informed her of the claimant’s actions and comments over the previous months. CO asked for a statement.
After the claimant was dismissed AF said she was made aware of the incidents between the claimant, CC and SM.
On cross-examination AF said she had never made any formal complaints regarding the claimant prior to the incident on the 1st February 2014.
BP, the co-owner, gave evidence. It was she who informed the claimant on the 5th February 2014 that he was dismissed. On meeting him that morning she asked him had there been an incident between him, MD and AF. The claimant said he had observed AF was upset and he had said something to her in Polish. BP told the Tribunal that at this point the claimant was already on a written warning and as he could give no explanations he was dismissed. The incidents at the weekend had been the “icing on the cake”. He had no respect for management.
BP explained that before the decision to dismiss the claimant was determined she and CO and spoken to a number of staff concerning various incidents with the claimant. Both CO and herself felt the claimant could no longer work for the respondent.
On cross-examination, BP said that if the claimant had said anything to contradict the allegations put to him she would have reconsidered the decision to dismiss him there and then but he had said nothing and just smiled at her.
When put to her she agreed the claimant had continued to work after he had been given a written warning regarding the incident with CC in August 2013. However, in hindsight, she said he should have been dismissed at that point.
Claimant’s Case:
The claimant gave evidence. He stated that the alleged incident with CC in August 2013 never occurred. He explained that any time he was required to enter the female locker room to use the washer / dryer he knocked on the door before entering. If someone was inside he left and returned later and would only enter if it was empty. He had never tried to enter the room forcibly. When put to him he said he had never received the written warning dated the 7th August 2014 and had had no meeting with CO regarding the matter.
He refuted he had ever uttered any inappropriate comments towards his female colleagues and had never intentionally touched any female member of staff. He explained that the kitchen was a narrow area and you could brush past each other but it was not of an inappropriate move.
On the 1st February 2014 he noticed AF and MD talking together. It was obvious AF was upset. As he passed AF he told her not to cry, he felt sorry for her. The claimant told the Tribunal that what he had said to AF “wasn’t major”, he just wanted her to feel better. He was not aware it was a private conversation, it was held in a public area.
On the 2nd February 2014 the Head Chef, HC, asked him to clean the hob tops. The claimant explained that at time he was cleaning out the oil and therefore could not do what HC asked him. It often happened that he was asked to do two things at once.
On the 5th February 2014 he arrived for work and BP asked to speak to him. BP told him there were accusations made against him and that he was not a good team worker. BP told him he was dismissed. He was not given the right to appeal the decision.
He gave evidence of the mitigation of his financial losses.
On cross-examination the claimant again refuted he had a fifteen minute meeting with CO in August 2013 and had been given a written warning. He said he could not understand why his former colleagues had made such accusations against him. There had been no issues raised against him prior to his summary dismissal.
It should be noted: In submissions the representative for the respondent stated the respondent conceded they had not followed the correct procedures when dealing with the termination of the claimant’s employment.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced over the two days of this hearing. The Tribunal finds the claimant was dismissed unfairly but finds the claimant in his actions contributed to his own dismissal.
Accordingly, the Tribunal awards the sum of €1,440.00 under the Unfair Dismissals Acts, 1977 to 2007.
Loss having been established the Tribunal awards the sum of €360.00, this being one weeks’ gross wages, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)