ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005898

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/11/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution under Section 8 Unfair Dismissals Act, 1977 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

Complainant’s submissions:

When the complainant started as the respondent restaurant, she was introduced to a male chef who was referred to as the ‘Italian Stallion’. He was from Romania. She found that description to be very sexual but she ignored it. The chef from the outset said inappropriate things of a sexual nature to her. One day when she returned from a bathroom break he said “have you been to the toilet” the complainant said ‘ yes’ . He said “So you got to touch your pussy. I would love to be the man who gets to touch your pussy”

On another occasion, he followed her into the walk-in freezer, trapped her by blocking the door and he tried to kiss her against her will. She struggled and managed to get away from him and out of the freezer.

Regularly, when he walked passed her he would rub his genitals off her bottom and smell her hair. He made comments about her body, her bottom and her hair on a daily basis. Then he told her that he loved her and would leave his wife and family for her. He tried to open her bra on another occasion.

A few weeks later, whilst the complainant was in the changing area putting on her shoes he came in, grabbed her and bite her neck whilst pulling at her clothing. She struggled to get away from him. She was frightened and concerned that something very serious was going to happen to her. The very next day when she was outside having a cigarette he followed her out, pushed her up against the bins and tried to kiss her neck again. She stated that the matter had escalated out of her control and she feared for her safety. She had spoken to the head chef about several of the incidents but she felt that he wasn’t taking the matter seriously, possibly because he was a friend of the chef, and because she was the only female in the kitchen. When she reported the matter to the head chef, he told her that he had spoken to the chef and promised her it wouldn’t happen again. Nothing changed save for him getting annoyed with her for reporting it.After the incident where she was assaulted out at the bins, she decided to go to M.C.,the owner director, to report the matter as she was unhappy about the outcome from her previous complaints. He listened to her complaints and then sent her back out to work in the kitchen with the chef. He told her that she was being placed on supervision. She didn’t know what that meant but assumed that it was for her protection.

On the 29th March the complainant was asked to sign the minutes of the meeting she had with the owner/director on the 26th. She signed them without reading them as she just wanted to get away from it all. She notes that the words “in jest “ have been added to the end of two of her complaints. The owner/director admitted when questioned that he had added that to the statement and the complainant had not said it. Furthermore, the final two points did not form part of the meeting on the 26th, the respondent stated that he discussed that with the complainant on the 29th and then when up to the office to and them to the notes. The complainant stated that that never happened. She believed that the chef was then placed on one week’s leave so that there could be an investigation. The respondent stated that she was incorrect and that that didn’t happen for another week or so. There was no investigation. Nobody came to talk to the complainant in relation to the investigation. When the chef was due to come back, the complainant got very anxious as she was afraid of him and what he might do to her. On the 6th April she went to talk to the owner/director but he dismissed her concerns and sent her back out to work. Then she said that she had spoken to her parents and to a lawyer and she was told that she shouldn’t have to work with someone who behaved in such a manner. Sometime later that day the owner director told her that he had fired him. She found out sometime later that he hadn’t been fired but had moved to the sister restaurant. The owner/director told her to “ let it go and don’t hold a grudge” . She was very upset and stressed because she felt that her complaints had fallen on deaf ears.

Almost immediately after that the complainant noticed a change in attitude towards her. If she had to squeeze past someone in the kitchen they would comment to the others “oh be careful there, she might report you”. Comments like that were made regularly. The head chef was also angry with her and she assumed it was because his friend had been moved to another restaurant because of her. She found it extremely difficult to work in this environment. She felt isolated because she was the only female and because of the other staff’s attitude towards her.

On the 14.05.2016 around the lunch time rush she moved a pot of potatoes off the stove down to the bottom of the kitchen. The head chef then asked who had placed the pot at the bottom of the kitchen. She said that she had done it. He told her to “move the fucking pot”. When she said she was too busy, he proceeded to shout and swear at her. She burst into tears and left. That incident was the straw that broke the camel’s back. She sent a text message to the owner explaining that she wasn’t feeling well and that she was going to go to the doctor. He said that she was rostered the next day and would have to come in. She told him that she would get a doctor’s note and submit it. The certificate stated “stress” and was dated 17.05.2017 and covered the period 15.05.2016 to 28.05.2016. The complainant handed it in, in or around the 17th. On the 19th May the complainant received a formal letter from the owner/director asking if she was well enough to attend to discuss her work and the issues she was having. It stated “As you can appreciate, I will still need to address the matter of you walking out on shift and sickness reporting”. This letter only served to exacerbate the complainant’s stress. Five days after the complainant when on sick leave she noticed a post containing a photograph on the chef’s Facebook page. The photograph was of a sign situated in the respondent’s restaurant kitchen stating “ Welcome back XXX…we missed you” She was horrified. She felt like nobody was taking her issue seriously. She dealt with the matter in line with the respondent’s grievance procedure but nothing really was done about it.

The complainant has developed an ulcer due to the stress she was under. She resigned her position in August. She accepts that she didn’t raise a complaint under the grievance procedure in relation to the staff’s attitude towards her. She felt there was little point as her previous complaint wasn’t taken seriously.

She applied for a job in another restaurant but only lasted a short time there. She was having panic attacks when she had to go into the kitchen area. She decided to get out of the industry altogether. She now works in the equestrian industry having started a new role in June, 2017. She earns slightly more now than she did with the respondent.

Respondent’s submissions:

The head chef stated that he has been employed by the respondent for a period of four years now. He is the head chef. He was responsible for training the complainant. He denied introducing the chef, to the complainant as the ‘Italian Stallion’. He stated that the complainant came to talk to him on two occasions about the chef’s behaviour. The first time she complained about him trying to open/snap her bra strap. The second time was when he tried to bite her on the neck. He didn’t consider the declaration of love report as a complaint. He couldn’t remember the details of the complaints. He didn’t know if the complainant said he had pulled and her bra or tried to open her bra. He couldn’t remember the details of the neck biting incident, where it had taken place or what exactly the complainant had said to him in relation to it. He did say that chef shouldn’t be behaving in this way and that he would talk to him about it. He did not report the complaints to the owner /director.

He stated that there was a very jovial atmosphere in the kitchen and staff member often made comments about each other’s appearance. He said the complainant’s hair and the smell of it, was the subject of many of their comments.

He was present at the meeting on the 26th. He did not give his statement until the 11.04.16 because he wasn’t asked for it. In his statement, he makes reference to only one of the complaints, the bra strap complaint. He didn’t mention the others because he thought he had dealt with them.

He denied that he was annoyed with the complainant for reporting the chef. He stated that when the chef left it did put them all under more pressure because they were down one member of the team. That in of itself caused problems but he didn’t blame the complainant for it.

The owner/ director of the restaurant has his office located beside the kitchen. He has an open-door policy. The 26.03.2016 was the first he had heard of the complainant’s complaints. She came into his office and they spoke for about 30 minutes. He was quite taken aback by the complaints the complainant was making. Following that meeting he typed up the notes. He met again with the complainant on the 29th. He added two additional points to his notes of the 26th and asked the complainant to sign them. He assessed the complainant and concluded that she was very uncomfortable with the situation. He felt that he needed to assess just how uncomfortable she was and whether, or not she could continue to work with the chef. Based on how uncomfortable he assessed her to be would determine whether he would treat the matter formally or informally.

He then when to talk to the head chef. He asked him to keep an eye on the complainant and to ensure that she and the chef were not rostered together after that. However, he wanted the chef to finish his shift on the 26th so that he could talk to him to find out exactly what was going on. He didn’t get to talk to him that day. He did allow them to work out their shift together on the 26th. On the Saturday, he also allowed an overlap of their shifts, albeit for just two hours because they were so busy and he couldn’t manipulate the roster enough to ensure they were kept apart.  

He spoke with the chef on the 30th. He admitted the allegations. It wasn’t until the complainant came to see him again on the 6th April that he decided that the matter would have to formalised. His sister in law was asked to investigate the matter. She took a statement from the head chef on the 11th April. It contained only one of the complainant’s complaints to him. She and the owner/directors brother met with the chef on the 12th April. The owner director was at that meeting too. At that meeting the chef again admitted the allegations. He asked if he could be moved to the sister restaurant. The owner/director stated in evidence that he had to consider, whether, or not he could move him over. In the meeting notes it states that he said the move would not be possible. The owner director told him that he could apply to the manager of the sister restaurant if he wished to do so. He did apply and did secure employment there. He is now back working at the respondent restaurant.

The respondent conceded that it did not have a policy to deal with harassment and sexual harassment in the work place.   

Finding and Conclusions:

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am is not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

The complainant was subject to a relentless campaign of unwanted physical and verbal behaviour by an employee of the respondent. She reported that matter to her boss who more or less dismissed the chef’s actions as nothing more than “banter”. She made at the very least three complaints to the head chef and no action was taken and the chef was not subjected to the disciplinary process. Even after he admitted the allegations on the 30th he was not disciplined.

When she reported the matter the owner director he too did not take the complaints seriously. I note that he stated in evidence that he was “ taken aback” by the complaints however he then went on to say in evidence that he had to “assess just how uncomfortable she was before I could decide whether to treat the matter formally or informally” and also that he “ had to decide whether to move him over to his sister restaurant”. He then proceeded to employ him in the sister restaurant. Those are not the thoughts or actions of an employer who takes allegation of sexual harassment seriously.

There should have been a thorough investigation immediately following the complainant’s original complaints. The chef should have been suspended pending the outcome of that investigation. When the chef admitted the allegation on the 30th March, he should have been disciplined. The owner should not have waited to assess ‘just how uncomfortable’ the complainant was before deciding to deal with the matter formally or informally. A formal complaint was made and it should have been dealt with as such from the outset. The adding of the words ‘in jest’ to two of the complaints is a very serious matter. Not only does it radically alter the seriousness of the allegations but it completely undermines the complainant and her legal rights.

Based on the respondent’s handling of the original complaint I find that the complainant was justified in not reporting the second incident i.e. the staff’s attitude towards her. Her belief that it would not be taken seriously is well founded. Furthermore, I find that having been subjected to a campaign of daily unwanted physical and verbal behaviour of a sexual nature and where her complaints were not taken seriously and then to be the subject of snide remarks by various members of staff following the chef’s departure, it was reasonable for her to terminate her contract of employment.

I note that the complainant has taken steps to mitigate her loss and is now working in the equestrian industry on salary that exceeds her salary with the respondent. She commenced her employment there in June, 2017. Prior to that she worked temporarily in another restaurant but due to panic attacks, arising from what happened in her employment with the respondent she had to leave.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complaint ADJ 5898 succeeds. In all of the circumstances, the most appropriate award is that of compensation. I award the complainant €15,000.00

Dated:   9th March 2018

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

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