Complainant

Respondent

Anonymised Parties

Chef

Contract Catering Co

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-00027344-001

28/03/2019

The Complainant was employed as a Chef from 30th November 2015 to 12th October 2018. He was paid €14.28 per hour and worked 40 hours per week. He has claimed that he was unfairly dismissed and has sought compensation.

The Respondent advised the hearing that the Complainant did not utilise the appeal mechanism so he failed to exhaust the internal appeals mechanism and so his claim must fail.

The Complainant had previously made an allegation of a physical assault and verbal abuse. It was investigated but not upheld. He was transferred to another location within this large site.

On 3rd September 2018 in the kitchen a female operative who is employed by a facilities company made an allegation that the Complainant asked her for a kiss. She alleges that he leaned towards her making a gesture for a kiss and asked her when they were going to go to the cinema. She rejected this and told him that she was going to report him. He then called her a “tease”. A formal complaint of sexual harassment was submitted by the female. The Complainant was immediately suspended on full pay pending investigation, with effect from 6th September 2018. An investigation meeting was held on 24th September 2018 to address allegations of sexual harassment and an alleged customer complaint from this site which could potentially bring the employer’s name into disrepute. He was advised this this could lead to his dismissal. He was copied with the Staff Handbook including the disciplinary procedure. He was also given the right to representation. His defence was that this was simple banter. He denied calling the female a tease. He accepted that he said the wrong thing to the wrong person. Having concluded the investigation, including hearing from three witnesses a decision was taken to escalate the matter to a disciplinary investigation. A disciplinary hearing took place on 5th October 2018 on charges of serious allegations of sexual harassment. He was again given the right of representation and copied with the disciplinary procedure, investigation notes and witness statements. He chose to be unrepresented. He denied he called her a tease. He denied talking about going to a movie and later said that he couldn’t remember. He conceded that he asked her for a kiss. He stated that it was just banter. He was elated that Dublin had just won the All Ireland and was going out to the ‘homecoming’ celebrations. He accepted that this behaviour was not acceptable. The outcome was that it was found that his actions amounted to sexual harassment. Consideration was given to alternative sanctions, but it was concluded that the Complainant had destroyed the basis of trust and confidence essential to continuation of employment. A decision was taken to summarily dismiss him and this was confirmed in writing on 11th October 2018. He was given the right to appeal but he failed to do so. The Respondent relies upon Sec 6(4)(b) of this Act. They cited cases A Worker v Hotel [2010] ELR 72, Nail Zone v Worker EDA 1023/2010 and Chef v Restaurant 2019 ELR in support. Based on the above cases the Respondent had to treat this case most seriouslyThey have a policy in place and the Complainant was trained in the policy. So, he was aware of what was expected of him in terms of his behaviour. They relied upon case Looney v Looney & Co Ltd UD 843/1984 concerning what a reasonable employer would do. They concluded that a reasonable response was to dismiss. They applied all fair procedures to the Complainant. He was informed in advance as to the allegations made against him. He was given the right of representation, given an impartial investigation and disciplinary hearing. All the evidence was considered before any decision was made. The Complainant’s actions contributed wholly to his dismissal. They accept that this was an isolated incident, but he had worked for only four days in that kitchen and he made inappropriate remarks and gesture to a female worker. His actions must be seen in that light. They were not convinced of the Complainant’s appreciation of the seriousness of the matter. They operated within the band of reasonableness within the scope of actions that warrant dismissal. The Complainant initiated the incident. The Respondent has a responsibility to all its employees and clients. There was a reference to another incident of assault against the Complainant. This dismissal case is completely separate to that one. The process was fair and impartial. The Complainant failed to appeal the decision so he has not exhausted the internal mechanism so his claim must fail. He has failed to mitigate his loss. He made only one application in November, none in December which is the busiest time of year. There is no issue with applications after March, however as he intends to go to college full time in September there is no loss beyond that date. The claim is rejected.

He stated that on 13th June 2018 he was both physically and verbally assaulted by the senior Chef. He made a complaint and he attended his GP and Solicitor. Following an incident on 3rd July 2018 the Respondent was aware that a case was before the Personal Injuries Assessment Board (PIAB). He was then moved to another site. Following his arrival at this large site he was subsequently moved on three occasions. The Complainant believes that there is a correlation between the June incident and this case. A sexual harassment claim is a most serious one.

Regarding the actual incident on 3rd September 2018 he stated that he was a great fan of Dublin Gaelic Football team, they had just won the All Ireland and had achieved four in a row. He was elated and in great spirits. He engaged in a bit of banter with the lady who made this complaint against him. He accepts that there were two incidents, one at 11.00am in the kitchen he asked her to go to the cinema and she declined. In the afternoon he was leaving to join Dublin fans in celebrating their achievement and he said to her “it deserves a kiss” pointing to his cheek. She responded, “I’ll give you a smack” and she said that she would report him. Later that night he reflected on the incident at work and concluded that he might have done something not appropriate. The next day he was told that he was to be moved to a new kitchen. His manager then told him that a report had been made to HR and he let him go home. He was suspended from work pending the investigation. He was then called to a disciplinary hearing and he was dismissed. He had an unblemished record. This was an isolated incident, it was work banter due to his excitement at the Dublin team’s achievements. The sanction was disproportionate. It was a reaction to the PIAB case., that was why an independent person should have carried out the investigation. The procedures applied were flawed. He was not given the opportunity to question the person who made the complaint. He was not a union member and so could only bring a work colleague, so he declined. He didn’t appeal the decision because he was in a bad place after the dismissal. He started looking for work in November but seriously looked for work after Christmas. In March 2019 he got a full-time job for two months earning €12.00 per hour. He then got a part time job in a hotel working 18 hours per week at €11.00 per hour. He is planning to go to college in September. Getting work has been made more difficult because it requires Garda vetting.

He stated that another incident involving a Kitchen Porter with the Respondent who was found to have inappropriately touched a female was relocated in the business and he was not dismissed.

The dismissal was unfair and he has sought compensation.

Unfair dismissal in sexual harassment case