Complainant

Respondent

Anonymised Parties

A Delicatessen department Manager.

A Retail Store

Representatives

Lisa Conroy Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018046-001

20/03/2018

The Complainant worked for the Respondent company from the 1st November 2013 until she resigned, claiming Constructive Dismissal 0n the 26th February 2018.

The complainant says that she commenced her employment with the Respondent on the 1st November 2013.

She says that she resigned from her employment with the Respondent on the 26th February 2018. She claims that this was not a voluntary resignation but was brought about by the Respondent and their words and actions.

She says she was employed in one of the Respondent’s three stores as a Deli counter assistant.

She says that in early 2015 she was promoted to the role of manager of the Deli area of the store. She says that she was happy working in the shop at that time.

She says that shortly after she was promoted a new manager was appointed to the store manager position and that very soon thereafter this manager started to sexually harass her and other female Deli staff, by inappropriate touching, inappropriate conversation and constantly asking the Complainant to go out on dates with him. She says that she told him that she was married, expecting that this would dissuade him from these activities, but it did not.

She said that she brought her complaints to the manager with overall responsibility for the 3 company stores. She says that a meeting was arranged with this manager and took place on the 26th February 2018. She says that she detailed her complaints of sexual harassment, at this meeting. She says that the manager in question just laughed at her and said that if she did not like the work environment, she could resign her position. She says that he pushed paper and a pen in her direction.

She says that she had been attending her doctor because of the stress and depression she was experiencing, associated with the harassment. Her doctor confirmed to her that the stress was, entirely, a result of the work environment she was experiencing. She says that she was then on medication for the stress and anxiety.

She says that the discussion with the Manager was the final straw and she resigned from her job on the 26th February 2018, as had been suggested by the Manager with whom she had just spoken.

She says that she was then so upset at losing her job that she decided to contact the owner of the 3 stores and advised her of her complaints of sexual harassment. She says she received no response from the owner.

She says that by letter of the 5th March 2018 she was contacted by the manager to whom she had spoken about her complaints. In this letter he expresses his “surprise” at her resignation. He says in the letter that she was “a valued team member” and asked “how they could keep her on board”. Hw said he was surprised at the reason given for the resignation and asked “if she wished to put forward an official grievance, if she felt mistreated”. He asked that she respond by March 10th 2018, but that “if you wish to leave we will process your termination of employment from the 26th February 2018”.

The Complainant says that she responded to this letter from the Respondent manager on the 10th March 2018, reiterating her complaints, saying again that those complaints had been met with laughter and the suggestion from the manager that she write out her resignation if she was not happy.

She says that she asked for a copy of the grievance procedure be sent to her together with a copy of the Respondent’s Policy and Procedure on Bullying and Harassment in the workplace.

She says that she received no further contact.

She says that she had sought her P45 as it would be required when she secured another job, but had still not received it by the 1st June 2018.

She says that, amongst other applications, she applied for a position with the same shop group in a different location in Dublin, but she was refused on the basis of a poor reference from the Respondent.

At the outset of the hearing the Respondent’s representative said that they would not be proceeding with the hearing and that she attended only to seek an adjournment of the hearing.

The Respondent did not attend.

She said that they had already applied to the WRC for the postponement but had been refused, on the evening before the hearing.

She said that the Respondent expected that the hearing would be re-arranged within 3 months of the current hearing.

I advised that I was not prepared to postpone the hearing, not least because the Complainant had been out of work since February, that the Respondent had been given sufficient notification of the hearing date and that further delay would be unfair to the complainant.

The Respondent representative asked for time to call the Respondent and I granted this.

She returned to the hearing to advise that she had been advised by the Respondent to withdraw from the hearing if it proceeded. She then left the hearing advising that they may appeal the outcome if it was unfavourable to them.

The Complainant makes a compelling case, in a very sincere way, that she was treated as she describes above. Because of this she says that she had no option but to resign from her job.

Section 1 of the Unfair Dismissals Act, 1977 defines dismissal and includes the provision in relation to “constructive dismissal”:

     (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In considering whether there was a constructive dismissal two distinct tests have been applied: the contract test and the reasonableness test.

The Labour Court in the case of A Worker v. An Employer [2005] ELR 132, said that “in a case of constructive dismissal the two “tests” may be used either in combination or in the alternative. The “reasonableness test” asks whether the employer conducts his affairs in relation to the employee so unreasonably that the employee cannot fairly be expected with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case, However, it is an important element of the reasonableness test that the employer has the opportunity to address an employee’s grievance or complaint”.

In this case it is clear from the evidence of the Complainant that the Respondent acted so unreasonably in not addressing her complaints of sexual harassment that she lost trust and confidence in the Respondent, leaving her with no option other than to resign her employment.

The Complainant, in constructive dismissal cases, is also required, prior to resignation, to invoke internal grievance procedures in order to afford the employer an opportunity to address the issues raised.

In this case the Complainant says that she made a number of complaints and indeed escalated these complaints to the owner when the manager failed to address her grievances.

I find that the Complainant made reasonable efforts to raise her complaints and have them addressed.

I find that the Respondent failed to address them properly, or at all.

I find that the Complainant was entitled, in the circumstances, to terminate her contract of employment. This constitutes constructive dismissal in accordance with the terms of Section 1(d) of the Unfair Dismissals Act, 1977.

I find for the Complainant and I award her €11,850.