Complainant

Respondent

Anonymised Parties

A Bar Person

A Public House and Restaurant

Representatives

Mr. Neil Breheny, Solicitor from Sean Ormonde & Co. Solicitors

Mr. Dan Walshe BL on the instructions of Nolan Farrell & Goff Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00032810-001

09/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00032810-002

09/12/2019

The Complainant was employed by the Respondent as a Bar Person from 28 October, 2017 until 11 September, 2019 when her employment was terminated. The Complainant claims that she was constructively dismissed from her employment contrary to the Unfair Dismissals Act 1977. The Respondent denies that a dismissal occurred and contends that the Complainant resigned from her position of her own volition.

The Complainant also claims that she was subjected to penalisation by the Respondent in the form of a constructive dismissal contrary to Section 27 of the Safety, Health and Welfare at Work Act 2005 as a result of having made a complaint about sexual harassment in the workplace. The Respondent disputes the claim that the Complainant was subjected to penalisation contrary to Section 27 of the Act of 2005 as a result of having raised a concern in relation to health and safety in the workplace.

CA-00032810-001 - Complaint under the Unfair Dismissals Act 1977

Summary of the Complainant’s Submissions

The Complainant submits that she commenced employment with the Respondent as a Bar Person on 28 October, 2017. The Complainant submits that because of her experience and willingness to work she quickly progressed and was given additional responsibilities such as working/balancing the cash register, opening and closing the premises, working in the serving of food to customers and in a completely “hands on” capacity with all customers and her colleagues. The Complainant submits that she is a sociable person and had a very good rapport with many of the regular customers as well as her work colleagues.

The Complainant submits that she attended the Respondent’s premises socially on 8 March, 2019 with her parents and a friend and went to the bar to order drinks. The Respondent’s security man was at the bar talking to a regular customer, Mr. X. The Complainant submits that Mr. X was well known to her as he was a regular customer in the bar, and she had also known him personally through her parents. The Complainant spoke to Mr. X at the bar while waiting for her drinks to be served and the security man took a photograph of the two of them with her phone. The Complainant was working the following night on 9 March, 2019 and Mr. X was on the premises and had a conversation with her about the photograph that had been taken the previous night. Mr. X gave the Complainant his phone number and asked her to send the photograph to him, which she did by text message later that night after finishing work.

The Complainant submits that Mr. X responded with a vile, humiliating, degrading and sexually explicit message via social media shortly thereafter which made her feel very uncomfortable and caused her to have a severe panic attack. The Complainant submits that although she was not in the presence of Mr. X at the time of receiving the message, she began to feel degraded and uncomfortable in her own home. The Complainant submits that she contacted her manager who told her to immediately report the matter to the Managing Director of the Respondent, Mr. Y, which she did.

The Complainant submits that she met with the Manging Director, Mr. Y and a member of An Garda Siochana at her workplace on 10 March, 2019. The Complainant was informed at this meeting that the message which she had been sent by Mr. X constituted sexual harassment, perhaps at a criminal level. The Complainant submits that she was unsure as to what action she should take and spoke to the Managing Director, Mr. Y, and it was agreed that Mr. X would be barred from the Respondent’s premises. The Complainant submits that the Manging Director told Mr. X to stay away from the bar and that she was content with this course of action. The Complainant submits that she suffered major confidence issues and anxiety as a result of the comments made to her by Mr. X but was not willing and capable of working with the Respondent now that Mr. X had been barred.

The Complainant submits that she continued to work for the Respondent following this incident without any further difficulty until 23 August, 2019 when she noticed Mr. X standing in the bar during her shift between 2:30 and 3:30 pm. The Complainant submits that she was in shock and fear upon seeing Mr. X in the bar as she had understood that he was barred from the premises. The Complainant submits that Mr. X extended his hand towards her, as if in friendship, but she refused to take his hand and instead walked out of the premises. The Complainant submits that she became agitated and concerned that Mr. X could just walk back into the bar after previously making such comments to her in the text message and after she had informed the Managing Director of her concerns in relation to the matter.

The Complainant submits that she returned to the Respondent’s premises later that afternoon after making a bank lodgement as originally planned upon where she saw the Managing Director, Mr. Y, in the company of Mr. X in the carvery section of the premises where they were having lunch together. The Complainant submits that she was shocked that Mr. Y appeared to be on close and friendly terms with the man, presumably barred, who had subjected her to sexual harassment. The Complainant subsequently contacted her supervisor and after explaining the situation and was given permission to leave work early that day.

The Complainant submits that she returned to work the next day on 24 August, 2019 and she noticed Mr. X again drinking at the bar at around 10:00 pm. The Complainant spoke to her Supervisor and told him that she would be out in the staff area if he needed her, and that she needed to speak to someone about the situation. The Complainant submits that she was noticeably upset and agitated, and that the Managing Director, Mr. Y, subsequently came out to speak to her. The Complainant submits that she had a confrontational conversation with Mr. Y in which she made known her level of discomfort and the fact that she had felt unsafe in the workplace with Mr. X around.

The Complainant submits that she informed Mr. Y that she thought Mr. X was barred from the premises to which he replied that Mr. X had been barred for six months but was back now. The Complainant submits that she informed Mr. Y that she had been sexually harassed by Mr. X and didn’t feel comfortable being in the same room as him. The Complainant submits that Mr. Y responded: “Well that’s between you and him, I can’t bar him for that”. The Complainant submits that she reminded Mr. Y that he had a duty of care to his workers and that she could not be expected to work in an environment where she felt intimidated, uncomfortable and threatened. The Complainant submits that Mr. Y responded that he did not believe she felt intimidated which made her visibly upset and feel like she was being accused of lying about how the incident with Mr. X had impacted upon her.

The Complainant submits that Mr. Y failed to provide any assurance that he would support her by refusing to serve Mr. X on the premises and he indicated that it was not possible to “go around barring everyone” and that she “should go and talk to him [Mr. X]”. The Complainant submits that she was being put in a very vulnerable position and that her employer had and was continuing to show no duty of care or respect for her as an employee or what she considered to be a very serious allegation of sexual harassment that had been reported to the Garda Siochana. The Complainant submits that Mr. Y then made a comment which left her hurt and victimised: “I’m sure lots of men are thinking that too. I can’t bar them all”. The Complainant submits that she ended the conversation with Mr. Y by making it clear that it was not possible for her to continue to work for the Respondent if he was not prepared to take the appropriate steps to protect her by barring Mr. X from the premises indefinitely. The Complainant submits that Mr. Y was now fully aware of her intention to resign due to the severity of the situation and the impact it was having on her but indicated that he could not bar Mr. X from the premises indefinitely.

The Complainant submits that she tendered her resignation to the Respondent on 11 September, 2019 and that she was treated for stress during the intervening period from that date and her last conversation with Mr. Y on 24 August, 2019. The Complainant submits that she received correspondence from the Respondent on 16 September, 2019 in which it was indicated by Mr. Y that he wanted her to make a formal complaint in the hope of trying to resolve the matter. The Complainant submits that it was not possible for her to make a formal complaint given that Mr. Y had advised her on 24 August, 2019 that he could not bar Mr. X and had indicated that he did not believe the matter had impacted upon her in the way she had contended. The Complainant submits that she had lost all trust and confidence in Mr. Y to deal with her complaint and given that he was the Managing Director of the Respondent there was no higher level of authority within the company where she could go with such a serious complaint.

Legal Submissions

The Complainant submits that there is no doubt that the behaviour at the centre of this case constitutes serious sexual harassment of the most severe, degrading, and humiliating form and that the Respondent’s failure to acknowledge the severity of the situation and the impact this was having on her constituted a good and valid reason to resign from her employment.

The Complainant submits that the definition of dismissal within Section 1 of the Unfair Dismissals Act 1977 includes a provision in relation to “constructive dismissal”. In considering whether there was a constructive dismissal, two distinct tests have been applied, namely the contract test and the reasonableness test. The Complainant submits that the Respondent’s behaviour constitutes a breach of the contract test and the reasonableness test.

The Complainant submits that the Respondent acted so unreasonably in its failure to protect her and to devastate her trust and confidence in the Respondent so as to leave her with no option other than to resign her employment and that same amounted to a repudiatory breach of her contract of employment.

The Complainant submits that in order to claim constructive dismissal it has been held that an employee may be required, prior to resignation, to invoke the internal grievance procedures to afford an employer an opportunity to address any issues raised. In the present case, the Complainant made her complaint directly to the Respondent’s Managing Director and there is no higher authority within the company.

The Complainant submits that the Respondent failed to deal adequately with these complaints, told her that he did not believe that she felt the way she felt, reverted in an entirely inappropriate manner before, ultimately placing the Complainant in a position where she would have been required to interact with and regularly serve the person who had subjected her to the humiliating and degrading treatment at the centre of the case. The Complainant submits that she behaved in a reasonable manner in attempting to engage with her employer and ultimately exhausting the internal procedures. The Complainant submits that realistically she could not have brought this matter any further.

The Complainant relies upon the following cases in support of her position, namely: Sheffield City Council v Norouzi [2011] IRLR 897; A Worker v A Hotel [2010] ELR 72; Kennedy v Foxfield Inns Limited t/s The Imperial Hotel UD549/1994; A Worker (Mr. O) v An Employer [2005] ELR 132; Stone v I. Maloney & Sons Limited DEC-E2010-096 and Citibank v Ntoko EED045.

Summary of the Complainant’s evidence

The Complainant stated that her family are involved in the bar trade and that she had extensive experience of working as a Bar Person prior to commencing employment with the Respondent on 28 October, 2017.

The Complainant stated that she had been socialising with members of her family on 8 March, 2019 and that she went to the Respondent’s bar with them for a drink during the course of the evening. The Complainant stated that she was off-duty and that she spoke to a customer (Mr. X) while she was ordering drinks at the bar. The Complainant stated that the security person in the bar took a photograph of her and Mr. X on her mobile phone while she was waiting for her drinks to be served.

The Complainant stated that she was working for the Respondent on 9 March, 2019 and that Mr. X was in attendance in the bar. The Complainant stated that Mr. X asked her to send him the photograph by text message which had been taken the previous night. The Complainant stated that she sent the photograph to Mr. X after she returned home from work that night and that almost immediately (at 12:56 am), she received a vile and degrading text message in reply from him which read: “Hi if U would like ur p…y sucked and f….d???”. The Complainant stated that she didn’t think that this message had been sent by Mr. X so she replied and asked if the sender had sent it to the wrong number. The Complainant stated that she received a reply from Mr. X to confirm that the message had been sent by him and a further inappropriate message stating: “Are u wet???”. The Complainant stated that she replied to Mr. X stating that these messages were very inappropriate and that he replied with a further message which stated: “Ok there U safe tonight”.

The Complainant stated that she became extremely worried after receiving the text messages from Mr. X as she was living on her own and she contacted her supervisor in work who instructed her to call Mr. Y (Managing Director of the Respondent) immediately. The Complainant stated that she contacted Mr. Y to report the incident and to make him aware that she had a previous experience of being stalked to which he replied that he would deal with the matter and make a report to the Garda Siochana.

The Complainant stated that she met with Mr. Y and Garda A at the Respondent’s premises the following day (i.e. 10 March, 2019) and that she was informed by Mr. Y that Mr. X was being barred from the Respondent’s premises. The Complainant stated that she was satisfied that Mr. X was being barred, however, there was no indication from Mr. Y in relation to the timeframe of the ban at that juncture. The Complainant stated that she felt safe in her job with the Respondent for the next five and half months until she unexpectedly and without prior notice observed Mr. X on the premises on 23 August, 2019. The Complainant stated that she was shocked and frightened to see Mr. X in the bar and immediately left the premises to go to the bank to make a lodgement for the Respondent. The Complainant stated that on her return to the premises that she noticed Mr. Y with his arm around Mr. X welcoming him back to the bar and that they proceeded to have a meal together in the restaurant. The Complainant stated that she went to the storeroom on the premises and telephoned her supervisor and informed him that she was going to make a formal complaint to An Garda Siochana in relation to the incident involving Mr. X.

The Complainant stated that she returned to work on 24 August, 2022 and that she observed Mr. X drinking in the bar at approx. 10 pm. The Complainant stated that she became very upset and informed her Supervisor that she would wait in the staff area at the back of the premises until she had the opportunity to talk to Mr. Y. The Complainant stated that Mr. Y came out of the bar to talk to her, and she informed him that she had understood that Mr. X had been barred from the pub indefinitely. The Complainant stated that she informed Mr. Y that she been sexually harassed by Mr. X and that she felt very intimidated by him and uncomfortable in his presence. The Complainant stated that Mr. Y informed her that he did not believe that she felt intimidated by Mr. X and then indicated that “lots of men were thinking that about her” but that he couldn’t bar them all from the premises.

The Complainant stated that Mr. Y replied that Mr. X had been barred from the premises for 6 months and that he was back now and that the General Manager of the Respondent also agreed with this position. The Complainant stated that she asked Mr. Y to call the General Manager to confirm his position on the matter, but Mr. Y refused to do so because Mr. Z was too busy working in the bar at that juncture. The Complainant stated that she was shocked and in disbelief by the response from Mr. Y and informed him that she couldn’t continue to work for the Respondent if he wasn’t prepared to bar the man who had sexually harassed her. The Complainant stated that Mr. Y was fully aware of her position at that juncture that she intended to resign her position if Mr. Y was not prepared to permanently bar Mr. X from the Respondent’s premises. The Complainant stated that Mr. Y confirmed that he could not bar Mr. X so she left the premises and went home.

The Complainant stated that she was very stressed after this meeting with Mr. Y and subsequently attended her General Practitioner and was advised not to return to work. The Complainant stated that she sent her written resignation to the Respondent on 11 September, 2019 on the basis that she had lost all trust and confidence in her employer because of its failure to permanently bar the person from the premises who had sexually harassed her.

In cross-examination, the Complainant denied that Mr. Y informed her during the meeting on 10 March, 2019 that a decision had been taken to bar Mr. X for only six months and that he would have to apologise to her after that period in order to be re-admitted to the premises. The Complainant denied that she had indicated to Mr. Y at this meeting that she was satisfied with any such arrangement. The Complainant stated that she accepts that she sent a text message to Mr. Y after the meeting on 10 March, 2019 to thank him for the manner in which he had handled the situation but stated that she had only sent this message on the basis of her understanding that Mr. X had been permanently barred from the premises. The Complainant stated that the conversation with Mr. Y on 24 August, 2019 was the first occasion that she was made aware by the Respondent that Mr. X had been barred from the premises for only six months.

The Complainant stated that she had a disagreement with a colleague (i.e. Mr. Y’s son) in the workplace on 11 July, 2019 in relation to the operation of the computer software relating to the cash registers on the premises. The Complainant stated that she left the workplace on this occasion and was subsequently certified unfit for work from 11 July, 2019 until 8 August, 2019 due to stress. The Complainant stated that there was a number of “management issues” in the workplace which had contributed to her stress and that she needed to take time out to think about these issues before returning to work. The Complainant stated that she was advised by her GP not to talk to anybody in work while she was absent on sick leave, and she stated that she had no recollection of Mr. Y approaching her to discuss the incident on 11 July, 2019 when she returned to work on 8 August, 2019. The Complainant stated that she did not invoke a grievance under the internal procedures in relation to this incident when she returned to work on 8 August, 2019 as she considered that the matter had concluded at that juncture. The Complainant stated that she took the view that the reason why Mr. Y had re-admitted Mr. X into the bar on 23 August, 2019 was to intimidate her and force her to leave her position as a response to the incident which had occurred with Mr. Y’s son on 11 July, 2019.

The Complainant stated that the discussion with Mr. Y on 24 August, 2019 was extremely confrontational and that he made it clear to her during this meeting that she would have to deal with Mr. X’s re-admission to the premises. The Complainant stated that Mr. Y didn’t ask her to explain how she felt intimidated by Mr. X at this meeting, and she contended that it should have been apparent to Mr. Y as he had seen the text messages in question and was fully aware of the effect that Mr. X’s re-admission to the premises was having on her.

The Complainant accepts that she received the letter dated 30 August, 2019 from the Respondent in which she was invited to invoke the internal grievance procedures to try and resolve the workplace issues that had arisen as a result of the incident involving Mr. X. However, the Complainant stated that this letter came too late as it was made clear to her at the meeting with Mr. Y on 24 August, 2019 that he was not going to change his mind about re-admitting Mr. X to the premises. The Complainant stated that she was left with no other option in the circumstances but to resign her position.

Summary of the Evidence of Garda A

Garda A stated that he received a telephone call from Mr. Y on 9 March, 2019 to inform him that one of his employees had received inappropriate text messages from a customer. Garda A stated that Mr. Y sent him copies of the text messages that the Complainant had received from Mr. X. Garda A stated that he met with the Complainant and Mr. Y at the Respondent’s premises on 10 March, 2019 and that he was provided with further information in relation to the allegations against Mr. X. Garda A stated that he took a statement from the Complainant in relation to the incident but that she indicated at that juncture that she did not wish to make a criminal complaint against Mr. X but rather she stated that she wanted him to be barred from the Respondent’s premises.

Garda A stated that he received a telephone call from Mr. Y later on 10 March, 2019 to confirm that he had spoken to Mr. X and informed him that he was barred from the premises. Garda A stated that Mr. Y didn’t provide any details in relation to the timeframe of the ban. Garda A stated that the Complainant informed him on 23 August, 2019 that she wished to withdraw the statement that she had made on 10 March, 2019 in relation to the incident involving Mr. X. Garda A stated that the Complainant contacted him again on 26 August, 2019 to indicate that she wished to make a criminal complaint against Mr. X. Garda A stated that this complaint was forwarded to the Director of Public Prosecutions and that he received a direction on 14 November, 2019 not to proceed with a prosecution.

In cross examination, Garda A disputes the Complainant’s contention that she contacted him on 23 August, 2019 rather than 26 August, 2019 to indicate that she wished to make a criminal complaint against Mr. X. Garda A stated that he knew Mr. Y on a personal basis and confirmed that he did not formally talk to him about the matter after the meeting on 10 March, 2019.

CA-00032810-002 – Complaint under the Safety, Health & Welfare at Work Act, 2005

The Complainant claims that she was subjected to penalisation by the Respondent by way of constructive dismissal contrary to Section 27 of the Safety, Health and Welfare at Work Act, 2005. The Complainant claims that she was forced to resign her position in circumstances which amounted to a constructive dismissal as a result of the inadequate and ineffective manner that the Respondent dealt with her complaint of sexual harassment by a customer (Mr. X) on 10 March, 2019.

The Complainant submits that this constructive dismissal constitutes an act of penalisation within the meaning of Section 27(2)(a) of the Act and that this act of penalisation occurred as a result of her having made a complaint of sexual harassment in the workplace.

The Complainant confirmed that she wished to rely upon all of the evidence which was adduced in respect of her complaint of constructive dismissal in support of her claim of penalisation under the Act of 2015.

The Complainant also adduced evidence that she had been involved in a disagreement with the Managing Director’s son in the workplace on 11 July, 2019 and that she went absent from work on stress related leave for a period of time following this incident. The Complainant stated that she took the view that the reason why Mr. X was allowed back into the bar on 23 August, 2019 was because of the disagreement that she had with the Managing Director’s son and that this was done to intimidate her and force her to leave her employment. The Complainant contends that this was a further act of penalisation contrary to Section 27 of the Act of 2005.

CA-00032810-001 - Complaint under the Unfair Dismissals Act, 1977

Summary of the Respondent’s Submissions

The Respondent is a limited company and operates a bar and restaurant in an urban location. The Respondent submits that the Complainant commenced employment as a member of the bar staff on 28 October, 2017 and that she had a very good working relationship with the Managing Director, Mr. Y. The Complainant submits that Mr. Y provided financial assistance and advice to the Complainant during her period of employment when she was experiencing financial difficulties.

The Respondent submits that the Complainant was provided with a copy of the company handbook which included its Grievance Procedures and Bullying and Harassment Policies during her period of employment.

The Respondent submits that the Complainant notified the Managing Director (Mr. Y) after 1 am on 10 March, 2019 that she had received inappropriate text messages from a customer (Mr. X) of the bar. The Respondent submits Mr. Y informed the Complainant that he would investigate the matter and that he subsequently met with the Complainant and Garda A at the bar on 10 March, 2019 to discuss this matter. The Respondent submits that it was agreed that the customer in question would be barred from the premises for a period of six months and that he would only be readmitted thereafter on the condition that he apologised to the Complainant and provided an assurance that the unacceptable conduct would not be repeated.

The Respondent submits that the customer was told to stay away from the bar and that the Complainant was satisfied with this response which was evidenced by the text message that she sent to the Managing Director on 10 March, 2019 which read: “[Mr. Y] I just want to thank you so much for the way that you handled that situation. I feel so much better today. You’re a good man and a great boss. Thank you so much for everything”.

The Respondent submits that the Complainant continued to work in the bar until she walked off the premises on 11 July, 2019 after having a heated argument with a work colleague (the Managing Director’s son). The Complainant was subsequently certified medically unfit to work from 11 July, 2019 until 5 August, 2019 on the basis that she suffering from “work related stress”.  The Respondent submits that the Managing Director, Mr. Y, sought to talk to the Complainant about the incident on 11 July, 2019 upon her return to work on 8 August, 2019 but she indicated that she was fine and that she would only start crying if she was to talk about it.

The Respondent submits that the Managing Director, Mr. Y met with Mr. X in a quiet part of the bar on 23 August, 2019 to discuss potential security work to be carried out monitoring cars left overnight in the carpark outside the premises. The Respondent submits that Mr. X had been barred for five and a half months and accepts that while he acted prematurely in extending his hand to the Complainant by way of apology on this date, this was done in the knowledge that Mr. X would be apologising to her for his unacceptable behaviour, and subject to compliance with the terms set out above, would be returning to the premises as a customer. The Respondent accepts that the Complainant telephoned her supervisor on this date and informed him that she was leaving the premises but did not provide a reason for her departure. The Respondent submits that the Complainant didn’t have permission to leave the premises on this occasion and didn’t approach the Managing Director, Mr. Y, or her supervisor both of whom were on the premises.

The Respondent submits that Mr. X’s 6-month exclusion from the premises was deemed to have concluded at that juncture and he was allowed to return to the bar. The Respondent submits that the Complainant and the Managing Director, Mr. Y, had a conversation in the courtyard of the bar on 24 August, 2019 in relation to the readmission of Mr. X to the premises. The Respondent disputes the Complainant’s contention that this conversation was confrontational and rejects her account in relation to the nature of the discussions that took place on this occasion. The Respondent accepts that Mr. Y informed the Complainant that Mr. X was now allowed back on the premises and advised her that she did not have to serve this customer if she was working at any time that he entered the premises. The Respondent submits that Mr. Y told the Complainant that his understanding was that she was satisfied that Mr. X had been barred for 6 months and advised her that she could pursue civil or criminal proceedings against this man if she wished and recommended that she contact An Garda Siochana.

The Respondent does not accept the Complainant’s contention that Mr. Y indicated that he did not believe that she was intimidated by Mr. X but instead asked her to explain how she was intimidated so that Mr. Y could understand her point of view. The Respondent does not accept that Mr. Y stated to the Complainant that “I’m sure that lots of men are thinking that too. I can’t bar them all” in the manner in which it is described by the Complainant. The Respondent submits that Mr. Y did indicate to the Complainant that lots of people look at others in inappropriate ways and that inappropriate banter can happen, which he does not agree with and which he does not condone. Mr. Y provided the Complainant with an example of such inappropriate comments being made to another member of staff, for which he had reprimanded the customer, who issued an apology and the inappropriate behaviour ceased.

The Respondent submits that Mr. Y advised the Complainant to speak to Mr. X in the context of the terms of his return to the bar as agreed by her in March, 2019, in order to bring about the apology and reassurances that had been promised by him at their meeting the previous March. The Respondent submits that Mr. Y asked the Complainant why she had changed her mind about Mr. X being barred for 6 months and was now seeking to have him barred permanently. However, the Complainant refused to answer this question.

The Respondent submits that Mr. Y asked the Complainant to take a few days to consider the matter and then to sit down with him and the General Manager to discuss and hopefully resolve the situation. However, the Complainant refused to consider this and continued to demand that Mr. X be barred permanently from the premises. The Respondent submits that the Complainant informed Mr. Y that she “was going to a solicitor and would do him for constructive dismissal”.

The Respondent submits that it was prepared at all times to investigate any grievance raised by the Complainant but no such grievance was ever raised. The Respondent wrote to the Complainant on 30 August, 2019 to offer support to the Complainant in the hope of resolving matters and referred to the company’s Grievance Procedures and Bullying and Harassment Policy. The Respondent invited the Complainant to set out in writing the cause of her work-related stress so that it could be resolved in line with the internal procedures. The Respondent also indicated that it looked forward to the Complainant’s return to work as she was a valued member of staff.

The Respondent submits that the Complainant submitted a letter of resignation on 11 September, 2019. The Respondent wrote to the Complainant on 16 September, 2019 expressing disappointment at her resignation and asked her to reconsider her decision. The Respondent requested the opportunity to sit down with the Complainant when she was well enough to do so with a view to resolving the issues that were causing her concern and indicated that Mr. Y was committed to dealing with the matter fairly and took his duty towards the Complainant very seriously. The Respondent submits that a further letter was sent to the Complainant on 15 October, 2019 again inviting her to engage with the internal Grievance procedures.

The Respondent submits that the Complainant did not make a formal complaint or invoke the internal Grievance Procedures and disputes her contention that any such complaint or grievance had been pre-judged. The Complainant did not seek to have someone other than Mr. Y handle any such complaint or grievance. The Respondent submits that its actions as set out above were entirely reasonable and proportionate, indicate a genuine concern for the wellbeing of the Complainant and a determination to prevent any recurrence of the customers behaviour.

The Respondent submits that it took swift action once informed of the customer’s inappropriate text messages and excluded the customer from the premises for a period which the Complainant was satisfied with and on terms to which she had agreed to. The Complainant seems to have changed her mind subsequently but did not at any stage seek to utilise the Respondent’s Grievance Procedures to try and resolve the matter.

The Respondent submits that in an effort to resolve the issue, Mr. Y spoke to Mr. X after the incident on 24 August, 2019 and advised him that the Complainant was still upset with his presence on the premises. The Respondent submits that Mr. X undertook to stay away from the Respondent’s premises for as long as the Complainant was working there. The Complainant was invited on several occasions to discuss a resolution of the matter, which would have involved explaining the undertaking from Mr. X to stay away from the premises, but the Respondent was not given the opportunity as she failed to engage with the Respondent.

Legal Submissions

The Respondent submits that the burden of proof rests with the Complainant to establish that she was dismissed.

The Respondent submits that there are two tests for constructive dismissal in the statutory definition within Section 1 of the Unfair Dismissals Act 1977 and that either or both may be invoked by an employee. The first test is the contract test where the employee argues “entitlement” to terminate the contract because of the fundamental breach of contract on the part of the employer. Secondly, the employee may allege that s/he satisfies the Act’s “reasonableness” test, that is, that the conduct of the employer was such that it was reasonable for him/her to resign.

The Respondent submits that there is no evidence whatsoever that it either breached a significant term, express or implied, going to the root of the Complainant’s contract of employment, or that it conducted itself so unreasonably that the Complainant could be justified in leaving. On the contrary, it is submitted that the Complainant failed to invoke the Respondent’s grievance procedure with a view to resolving the issues that she has sought to rely upon to justify her resignation.

The Respondent denies the suggestion made in the Complainant’s submissions that it showed no interest in protecting her as an employee or that it prioritized making money and the success of the business over her health and welfare. The Respondent submits that its actions were entirely reasonable and proportionate in the circumstances and indicate a genuine concern for the well-being of the Complainant and a determination to prevent any recurrence of Mr. X’s behaviour.

The Respondent submits that it took swift action once informed of Mr. X’s inappropriate text messages and excluded him from the premises for a period which the Complainant was satisfied with and on the terms that she agreed to. The Respondent submits that the Complainant seems to have changed her mind subsequently but did not, at any stage, seek to utilise the Respondent’s internal grievance procedures. The Respondent brought these procedures to the Complainant’s attention on a number of occasions, and she failed to avail of the opportunity to discuss the issues as suggested by Mr. Y.

The Respondent relies upon the following cases in support of its position, namely: Western Excavating (ECC) Ltd. V Sharp [1978] ICR 221, General Operative v A Religious Society ADJ-0002814, Berber v Dunnes Stores [2009] IESC 10, Carthy v Clydale Investment UD1091/2004, Conway v Ulster Bank Ltd. UD474/1981, Mooney v CPC Foods (Ireland) Limited UD383/1987, Power v University of Limerick UD654/191, Moran v Electricity Supply Board UD347/1997, Gregory v Cannon Hygienic Products (Ireland) Limited UD283/1992, McCormack v Dunnes Stores UD1421/2008, Yinka Rahman v Terminal Four Solutions Limited UD898/2011, Harrold v St. Michael’s House [2008] ELR 1, An Employee v An Employer UD720/2006 and A Supervisor v A Hotel and Golf Resort ADJ-00006368.

Summary of the Evidence of Mr. Y (Managing Director)

Mr. Y stated that he is the Managing Director of the Respondent company and that the Complainant commenced employment with the business in October, 2017. Mr. Y stated that he had a very good working relationship with the Complainant and that she was a very good worker and valued member of staff. Mr. Y stated that the Complainant forwarded him the messages that she had received from Mr. X on 10 March, 2019 and that he informed her that he would deal with the matter immediately. Mr. Y stated that he accepts that the messages sent to the Complainant by Mr. X were totally abhorrent and inappropriate and that he acted on the matter as soon as it was reported to him.

Mr. Y stated that he met with the Complainant on 10 March, 2019 to discuss the matter and advised her that she should report the incident to An Garda Siochana. Mr. Y stated that he subsequently spoke to Garda A and the Complainant at the Respondent’s premises on 10 March, 2019 and reported the incident involving Mr. X. Mr. Y stated that he informed the Complainant that he would support her if she wished to make a criminal complaint in relation to the matter.

Mr. Y stated that he took the decision to bar Mr. X from the Respondent’s premises for a period of six months because of the incident involving the Complainant and that he informed her of this action. Mr. Y stated that he subsequently informed Mr. X that he was barred from the premises for six months and that on his return he would have to apologise to the Complainant and provide an assurance that the conduct would not be repeated. Mr. Y stated that the Complainant did not raise any issue with him at that juncture in relation to the decision to bar Mr. X from the premises for the period of six months.

Mr. Y stated that the Complainant had a disagreement at work with Mr. Y’s son on 11 July, 2019 which resulted in her walking off the premises following the incident. Mr. Y stated that the Complainant submitted a medical certificate later that day to indicate that she was unfit for work due to work related stress and that she remained absent from work on certified sick leave until 8 August, 2019. Mr. Y stated that the Complainant returned to work on 8 August, 2019 and indicated that she had did not want to talk about the incident that occurred on 11 July, 2019.

Mr. Y stated that Mr. X was not employed by the Respondent at any juncture but that he came into the bar on 23 August, 2019 to inform him about a potential security issue in relation to cars which were left overnight in the carpark outside the premises. Mr. Y stated that Mr. X mentioned to him that he had met the Complainant during this visit to the bar and had attempted to extend his hand by way of apology but that she refused to shake his hand. Mr. Y stated that he was satisfied that Mr. X had served his ban from the premises at that juncture and that he deserved a second chance. Mr. Y stated that he could not pursue the issue any further and that it was a matter for the Complainant to initiate civil or criminal proceedings against Mr. X if she wished to do so. Mr. Y stated that the Complainant left the workplace early without permission after meeting Mr. X on 23 August, 2019 and did not inform him that she was doing so.

Mr. Y stated that he was working in the bar on 24 August, 2019 and was attending to a technical issue in relation to the music sound system when he was informed by a staff member that the Complainant had walked out of the premises after she had seen Mr. X in the bar. Mr. Y stated that he spoke to the Complainant at the back of the premises and tried to assure her that she had his full support and that he wished to talk to her to try and resolve any issues. Mr. Y stated that he told the Complainant that Mr. X was allowed back on the premises after having served his ban and that he also informed her that he had understood that she was satisfied that Mr. X had been given a six-month ban. Mr. X stated that he also informed the Complainant that she was not obliged to serve Mr. X if he attended the premises while she was working if she felt uncomfortable in having interaction with him.

Mr. Y stated that he did not adopt a confrontational disposition towards the Complainant during this conversation and that he attempted to convey to her that she had been off duty on the night that the incident with Mr. X had occurred and that it was open to her to pursue a complaint to An Garda Siochana in relation to the matter. Mr. Y stated that he asked the Complainant to consider the matter for a few days and to sit down with him and the General Manager to try and resolve the situation. Mr. Y stated that the Complainant refused to consider this request and was adamant that Mr. X should be barred from the premises on a permanent basis. Mr. Y stated that the Complainant informed him that she was going to pursue a claim of constructive dismissal against him and that she was going to consult with her solicitor in relation to the matter.

Mr. Y stated that he spoke with Mr. X after the discussion with the Complainant on 24th August, 2019 and informed him that the Complainant was still upset by his presence on the Respondent’s premises. Mr. Y stated that Mr. X undertook to stay away from the premises while the Complainant was working for the business.

Mr. Y stated that he wrote a letter to the Complainant on 30 August, 2019 to offer his support to her and to try and resolve the matter to her satisfaction. This letter referred to the Respondent’s internal Grievance Procedures and Bullying and Harassment Policies and noted that Mr. Y had not received a formal complaint from her in relation to her “work related stress”. Mr. Y invited the Complainant to set out in writing the cause of her work-related stress so that it could be resolved in accordance with the Respondent’s internal policies and informed her that he looked forward to her return to work as she was a valued member of staff.

Mr. Y stated that he received a letter from the Complainant on 11 September, 2019 in which she indicated that she was resigning her position and that she had been deemed medically unfit to work at the Respondent’s premises due to stress. Mr. Y stated that he sent further letters to the Complainant on 16 September, 2019 and 15 October, 2019 expressing his disappointment with her decision to resign and asking her to reconsider the matter. Mr. Y stated in these letters that he would like the opportunity to meet with the Complainant when she was medically fit to discuss the issues and try and resolve the matter. Mr. Y also indicated in this letter that he was committed to dealing with the matter in a fair manner and that he took his duty towards her as an employee very seriously. Mr. Y stated that the Complainant refused to engage with him in relation to her grievance and left her employment of her own volition.

In cross-examination, Mr. Y stated that he didn’t have any control over the Complainant taking the photograph with Mr. X on the night in question as she was not working on this occasion. Mr. Y stated that he is fully aware of an employer’s obligation to deal with sexual harassment in the workplace and that the Respondent has comprehensive policies in place to deal with such matters. Mr. Y stated that he does not accept that the incident was workplace related but that he attempted to deal with the matter as soon as it was brought to his attention by the Complainant.

Mr. Y denies that he informed the Complainant that Mr. X was banned from the premises indefinitely arising from the incident on 10 March, 2019 and contends that she was fully aware that Mr. X would be allowed to return after serving the six-month ban subject to the condition that he apologised to the Complainant for his behaviour. Mr. Y stated that Mr. X came into the bar on 23 August, 2019 to pass on information to him about a car that was illegally parked in the Respondent’s car park and that he offered to provide Mr. X with lunch on this occasion. Mr. Y stated that he expected Mr. X to apologise to the Complainant immediately upon his return to the premises which was in keeping with the conditions upon which it was agreed that he would be re-admitted following the expiry of his six-month ban from the premises. Mr. Y also disputes the Complainant’s contention that he had his arm around Mr. X on 23 August, 2019 by way of welcoming him back onto the premises.

Mr. Y accepted that Mr. X was in the bar again on 24 August, 2022 at approx. 10 pm and that the Complainant became upset upon seeing Mr. X on the premises. Mr. Y accepts that he had a conversation with the Complainant on this occasion after she indicated that she wasn’t prepared to return to the bar after seeing Mr. X on the premises. Mr. Y disputes that he stated to the Complainant during the conversation on 24 August, 2019 that she did not have the right to feel intimidated by Mr. X but rather he asked her to explain how she felt intimidated so that he could fully understand her point of view.

Mr. Y also disputes the Complainant’s contention that he made the following statement to her in a derogatory manner, namely “I’m sure lots of men are thinking that too. I can’t bar them all”. Mr. Y accepts that he did indicate that lots of people look at others in an inappropriate way and that inappropriate banter can happen, which he does not agree with and does not condone.

CA-00032810-002 – Complaint under the Safety, Health & Welfare at Work Act, 2005

The Respondent disputes the Complainant’s claim that she was subjected to penalisation contrary to Section 27 of the Act of 2005.

The Respondent submits that the Complainant’s claim under the Act of 2005 is grounded on the basis that she has been subjected to a dismissal (i.e. a constructive dismissal) being a “dismissal” which comes within the definition of “penalisation” in section 27(2) of the 2005 Act. The Respondent submits that there is nothing to suggest that the definition of “dismissal” in Section 27(2)(a) of the Act of 2005 is any different to the definition of “dismissal” in the Act of 1977 or that the concept of constructive dismissal is any different in the context of a penalisation claim than it is in a claim for unfair dismissal.

The Respondent disputes the Complainant’s claim of constructive dismissal and therefore contends that if the Adjudication Officer concludes that she was not constructively dismissed (within the meaning of “dismissal” under the Act of 1977) then the claim of penalisation under the Act of 2005 cannot succeed.

The Respondent sought to rely upon all the evidence which was adduced in respect of its response to the complaint of constructive dismissal in support of its position in relation to the claim of penalisation under the Act of 2005.

The Respondent disputes the Complainant’s claim that she was subjected to penalisation contrary to Section 27 of the Act of 2005 as a retaliation in relation to a disagreement which she had in the workplace with the Managing Director’s son on 11 July, 2019. The Respondent submits that such an act, if it had occurred, which is denied, does not constitute a protected act for the purpose of Section 27(3) of the Act of 2005.

The Complainant relied upon the following cases in support of its position in this matter, namely: Paul O’Neill -v- Toni & Guy Blackrock Limited [2010] ELR 21; Bailey t/a Finesse Beauty Salon v Farrell (HSD104); An Employee v A Charity (ADJ-00006411); Road Safety Authority v Hegarty (HSD142; Department of Justice and Law Reform v Kirwan (HSD082) and Fergal Brodigan t/a FB Groundworks v Dubina (HAD0810).

CA-00032810-001 - Complaint under the Unfair Dismissals Act, 1977

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

“dismissal”, in relation to an employee, means—

(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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarized the ‘contract test’ as follows: “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 other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In both types of situations, the conduct must be of sufficient gravity to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The Complainant contends that she had no option but to resign her position as a result of the inadequate and ineffectual response by the Respondent to the sexual harassment which she had been subjected to by a customer (Mr. X) on 10 March, 2019 after she returned home having completed her shift in the Respondent’s bar. The Complainant contends that she was subjected to serious sexual harassment by way of text messages from this customer on the night in question and that the Respondent failed to provide her with a safe working environment which was free from the threat of further sexual harassment by readmitting her harasser to the premises within a period of six months following the incident on 10 March, 2019. The Complainant claims that she was entirely justified in resigning her position on the basis that the Respondent had placed her in a position whereby she would have been obliged to interact with her harasser on a regular basis in the workplace. The Complainant contends that the Respondent’s conduct was so unreasonable in the circumstances to the extent that it amounted to a repudiatory breach of contract.

The Respondent disputes the Complainant’s contention that her position was untenable and contends that she acted totally unreasonably in resigning her position without fully exhausting the internal grievance procedures in relation to the issues that were causing concern in relation to her employment. The Respondent contends that it acted in an effective, proportionate and reasonable manner by dealing with the Complainant’s complaint of sexual harassment within a period of 24 hours and barring her harasser from the premises for a period of six months with the agreement of the Complainant.

It was not in dispute between the parties that the Complainant was subjected to sexual harassment by a customer of the Respondent (namely Mr. X) as a result of the lewd text messages which he sent to her on 10 March, 2019. Having regard to the evidence adduced, it is clear that these messages were of a vile, degrading, offensive and wholly inappropriate nature and had the effect of violating the Complainant’s dignity. However, there was a dispute between the parties on the issue of whether or not the sexual harassment to which the Complainant was subjected to by Mr. X occurred in the course of her employment. The Respondent, on the one hand, contends that the text messages in question were sent to the Complainant by a customer after she had completed her shift in the bar and had left the workplace and, therefore, did not occur in the course of her employment. The Complainant, on the other hand, maintains that the sexual harassment occurred during the course of her employment on the basis that Mr. X was availing of the services of the Respondent, and she contends that the Respondent was vicariously liable for the conduct of the customer.

In considering this matter, I note that the UK Courts have provided guidance on the question of whether an act was done in the course of employment. In the case of Jones v Tower Boot Company Limited [1997] IRLR 168 the Court of Appeal for England and Wales held that: “The phrase ‘in the course of employment’is to be construed in the sense in which a layman would understand those words”. In the case of Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 the UK Employment Appeals Tribunal an issue arose involving a complaint of sexual harassment at events immediately after work or at an organised leaving party. In that case the Tribunal found that the borderline between whether or not a social gathering was an extension of the employment may be difficult to find and stated that: “It is a question of the good exercise of judgement by an industrial jury. Whether a person is or is not on duty, and whether or not the conduct occurred on the employer’s premises, are but two of the factors which will need to be considered”.  Having regard to the facts of the instant case, I am satisfied that the sexual harassment to which the Complainant was subjected by a customer of the Respondent occurred in circumstances which were sufficiently connected with her employment such that it could reasonably be construed as having occurred in the course of employment.

It is clear that an employer has a legal obligation under various enactments including equality legislation to protect its employees from sexual harassment in the workplace which may be perpetrated by either employees or non-employees, including customers. An employer is legally responsible for the sexual harassment and harassment suffered by its employees in the course of their work unless he/she took reasonably practicable steps to prevent sexual harassment and harassment from occurring, to reverse the effects of it and to prevent its recurrence. In the instant case, the Complainant contends that the Respondent’s response to the sexual harassment to which she was subjected by a customer (Mr. X) was so unreasonable and inadequate in the circumstances to the extent that she had no other option but to resign from her position.

I have carefully considered the manner in which the Respondent dealt with the Complainant’s complaint of sexual harassment when this matter was brought to its attention on 10 March, 2019. Having carefully considered the totality of the evidence adduced, I find that the Respondent acted in an effective and reasonable manner immediately upon becoming aware of the incident of sexual harassment by conducting an investigation into the matter and putting remedial measures in place to prevent such conduct from reoccurring by barring the Complainant’s harasser from the premises.

In coming to this conclusion, I am satisfied that it is clear from the evidence adduced that the Respondent treated the Complainant’s complaint of sexual harassment with the utmost of seriousness from the outset and proceeded to act upon the complaint immediately upon being notified of the matter by her on 10 March, 2019. It is common case that the Respondent brought this matter to the attention of An Garda Siochana and that a meeting took place between the Respondent, the Complainant and Garda A on the date that the sexual harassment had occurred with a view to discussing the incident and putting remedial action in place to prevent a reoccurrence of the unwanted conduct. I note that the Respondent adduced evidence that the Managing Director (Mr. Y) also spoke to the customer in question (Mr. X) as part of his investigation into the complaint and that this person was subsequently barred Mr. X from the premises with immediate effect following the incident on 10 March, 2019. Having regard to the evidence adduced, I am satisfied that the Complainant was satisfied at that juncture in relation to the manner in which the Respondent had dealt with her complaint of sexual harassment and that she was content to resume her employment with immediate effect thereafter.

The key area of contention between the parties in relation to the manner in which the Respondent dealt with the incident of sexual harassment relates to the issue surrounding the understanding and interpretation of the respective parties in relation to the precise nature of the ban that was imposed on Mr. X arising from the incident of sexual harassment. The Respondent maintains that the Complainant was fully aware and satisfied with the manner in which the matter was initially dealt with on 10 March, 2019. The Respondent contends that it was made clear to the Complainant at that juncture that Mr. X was being barred from the premises for a period of six months and would only be readmitted thereafter on the basis that he apologised to her and gave an assurance that the unwanted conduct would not be repeated. The Complainant vehemently disputes the Respondent’s contention that she was informed by the Respondent, or had any knowledge, that the ban on Mr. X was timebound for a period of six months. The Complainant contends that she had understood from the outset that this ban would be applied on a permanent basis.

It is clear that the diametrically opposing views of the parties in relation to the precise nature of the ban which had been imposed on Mr. X by the Respondent only surfaced on 23 August, 2019 when the Complainant witnessed Mr. X on the premises during the course of her shift. It was common case that Mr. X was readmitted to the premises by the Respondent on this date and was also present again the following day on 24 August, 2019 when the conflicting interpretations in relation to the precise nature of the ban that had initially been put in place came to a head between the parties.

It was common case that there was a conversation between the Complainant and the Respondent’s Managing Director (Mr. Y) at the workplace on this date after the Complainant had witnessed Mr. X on the premises. However, there was a serious conflict of evidence between the parties in relation to the precise nature and tone of the discussions that took place between the parties on this occasion. The Complainant contends that this meeting was very confrontational and that she expressed serious concerns to Mr. Y about the Respondent’s refusal to permanently bar Mr. X from the premises. The Complainant claims that the Respondent refused to acknowledge her concerns and to provide an assurance that Mr. X would be permanently barred from the premises. The Complainant claims that she was left with no alternative but to resign from her position on the basis that she had lost all trust and confidence in the Respondent to provide her with a safe workplace which was free from the threat of sexual harassment.

The Respondent disputes that the conversation between the Complainant and Mr. Y was in any way confrontational during this discussion and contends that Mr. Y informed the Complainant that she had his full support in relation to the matter. The Respondent accepts that Mr. Y informed the Complainant that Mr. X was being readmitted to the premises but maintains that he sought to explain to the Complainant that this action was being put in place in accordance with the arrangements that had been agreed with her when the ban was initially imposed following the incident on 10 March, 2019.

I am not in a position to definitively resolve the directly conflicting evidence of the parties in relation to the precise nature of the discussions that took place between the Complainant and Mr. Y on 24 August, 2019 given that there was no other witnesses to the discussions apart from the two aforementioned parties. However, on balance, I find that the account provided by Mr. Y is likely to be the more accurate account of the nature of the discussions that took place between the parties on this date. In coming to this conclusion, I have taken account of the fact that Mr. Y had already demonstrated that he was a reasonable and approachable employer and had genuine care and concern for the Complainant’s safety and wellbeing in the workplace by dealing with her initial complaint of sexual harassment in an expedient and effective manner in March, 2019.  

However, notwithstanding the serious conflict in evidence in relation to a number of the issues that were discussed at this meeting, I note that it was common case between the parties that the Complainant informed Mr. Y on the conclusion of this meeting that she could no longer continue to work for the Respondent in circumstances where Mr. X was not permanently barred from the premises and that she would be taking a case for constructive dismissal. It was also common case that the Complainant left the workplace on this date and that she was subsequently certified medically unfit to work thereafter before ultimately submitting a letter of resignation to the Respondent on 11 September, 2019.

It is well established that in advancing a claim for constructive dismissal that an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his or grievance with their employer.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A. UDD1636 that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDD474/1981”.

The Employment Appeals Tribunal in the case of An Employee v An Employer UD1421/2008 held that: “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In considering this issue, I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure and a policy on Harassment and Sexual Harassment in the workplace in place which conform to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) and Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208/2012). Having regard to the evidence adduced, I note that it was not in dispute that these policies were brought to the Complainant’s attention during her period of employment and that she was fully aware of its existence.

It was common case that the Complainant did not invoke the internal grievance procedures prior to her resignation. It is well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his/her grievances (see Liz Allen -v- Independent Newspapers [2002] 13 ELR 84, Moy -v- Moog Ltd [2002] 13 ELR 261, and Monaghan -v- Sherry Bros [2003] 14 ELR 293 and New Era Packaging -v- A Worker [2001] ELR 122).

The Complainant contends that there were factors present in the circumstances of the present case which would excuse her failure to invoke the internal procedures because of the wholly inadequate manner in which the Respondent had dealt with her complaint of sexual harassment. In this regard, the Complainant contends that she had already made a complaint to the Respondent’s Managing Director (Mr. Y) on 24 August, 2019 in relation to her concerns about Mr. X being readmitted to the premises and that he failed to acknowledge the severity of the situation and the impact that it was having on her by virtue of his failure to permanently bar her harasser from the premises. The Complainant maintains that this complaint was made to the Respondent’s Managing Director and that there was no higher authority within the organization that it would have been futile to raise this matter under the internal procedures.

Having regard to the evidence adduced, I am not satisfied that there were factors present in the circumstances of the present case which would excuse the Complainant’s failure to invoke the internal grievance procedures before resigning. In coming to this conclusion, I am satisfied that the Respondent made several attempts to contact the Complainant after the meeting on 24 August, 2019 to engage with her with a view to trying to discuss and resolve the issues that were causing her concern, and ultimately, trying to persuade her to reverse her decision to resign her position. In this regard, I note that the Respondent sent a letter to the Complainant on 30 August, 2019 (i.e. before the Complainant submitted her formal letter of resignation on 11 September, 2019) in an effort to demonstrate its support in terms of resolving the issues of concern and affording her the opportunity to have these issues dealt with in accordance with the internal procedures. The Respondent also sent two further letters to the Complainant (16 September, 2019 and 15 October, 2019) in an attempt to persuade her to reverse her decision to resign and informing her that her position was still available to her. I am satisfied that the Respondent was a reasonable employer and that the foregoing attempts to engage with the Complainant were genuine efforts to try and resolve the issues that were causing her concern in relation to the readmission of Mr. X to the bar. However, it is clear that the Complainant failed to take up the opportunity to engage with the Respondent in relation this matter but rather sought to resign her employment.

Having regard to the foregoing, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met in the circumstances of the present case where the Complainant failed to exhaust the procedures available to her before taking the step to resign, thereby not providing the Respondent with an opportunity to address her grievances in a proper manner.

Accordingly, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act, 1977. Accordingly, I find that her complaint cannot succeed.

CA-00032810-002 – Complaint under the Safety, Health and Welfare at Work Act, 2005

The Law

Section 27 of the Safety, Health and Welfare at Work Act, 2005, states:

“(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes –

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for –

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent, and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

In the instant case, the Complainant claims that she was subjected to penalisation by the Respondent by being subjected to a dismissal (i.e. constructive dismissal) for having made a complaint in relation to sexual harassment being a matter concerning her health and safety in the workplace.

I note that it was not in dispute between the parties that the Complainant made representations to the Respondent by way of a complaint dated 10 March, 2019 that she had been subjected to sexual harassment in the workplace by a customer (Mr. X). Having considered the evidence adduced by both parties on this matter, I find that the Complainant did, in accordance the provisions of Section 27(3)(c) of the Act, make a representation to her employer as regards matters relating to safety, health or welfare at work. Accordingly, I find that the Complainant’s actions in this regard constitute a protected act within the meaning of Section 27(3) of the Act.

The Labour Court has held in the case of Toni & Guy Blackrock Limited -v- Paul O’Neill (HSD095) that: “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish not only that she suffered a detriment of a type referred to at subsection (1) but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

The Complainant contends that having made a protected act that she was subjected to the detriment of being constructively dismissed from her employment which in turn constitutes an act of penalisation within the meaning of Section 27(3) of the Act.

It is clear from the wording of paragraph Section 27(2)(a) of the 2005 Act that penalisation includes a dismissal which is further defined in this provision as including a dismissal within the meaning of the Unfair Dismissals Acts. The Complainant has sought to rely upon a claim of constructive dismissal within the meaning of Section 1 of the Act of 1977 as the basis of the claim of penalisation within the meaning of the Act of 2005.

Having regard to my findings above that the Complainant has failed to establish that she was not dismissed (constructively or otherwise) within the meaning of Section 1 of the Unfair Dismissals Acts, I find that she did not suffer the detriment claimed (i.e. dismissal) within the meaning of Section 27(1) of the Act of 2005. Accordingly, I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act of 2005.

For the sake of completeness, there is one further matter that I must also address in the context of the complaint under the Act of 2005. I note that the Complainant adduced evidence at the hearing that she had been involved in a disagreement with the Managing Director’s son in the workplace on 11 July, 2019 and that she went absent from work on stress related leave for a period of time following this incident. The Complainant stated that she took the view that the reason why Mr. X was allowed back into the bar on 23 August, 2019 was because of the disagreement that she had with the Managing Director’s son and that this was done to intimidate her and force her to leave her employment. The Complainant contends that this was a further act of penalisation contrary to Section 27 of the Act of 2005. The Respondent disputes the Complainant’s claim that she was subjected to penalisation contrary to Section 27 of the Act of 2005 as a retaliation in relation to a disagreement which she had in the workplace with the Managing Director’s son on 11 July, 2019.

In considering this matter, I find it noteworthy that the Complainant did not make any reference to this alleged act of penalisation in her initial complaint to the WRC or her subsequent written submissions in support of the claim. The first occasion that this claim of penalisation arising from the disagreement with the Managing Director’s son was made by the Complainant occurred during the course of her cross-examination at the oral hearing.

It is clear from the wording of Section 27 of the Act that in order to make out a complaint of penalisation it is necessary for the complainant to establish that the detriment of which he or she complains was imposed for having committed one of the acts protected in subsection 3 (see also the abovementioned decision of the Labour Court in Toni & Guy). Having regard to the foregoing, I find that the Complainant has not established that the fact of her having had a disagreement with the Managing Director’s son constitutes a protected act within in the meaning of Section 27(3) of the Act. Accordingly, I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act of 2005 in respect of this matter.

CA-00032810-001 - Complaint under the Unfair Dismissals Act, 1977

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 Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed and therefore is not well-founded.

CA-00032810-002 – Complaint under the Safety, Health and Welfare at Work Act, 2005

Section 41 of the Workplace Relations Act, 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Complainant has not established that she suffered any detriment that constitutes penalisation within the meaning of Section 27 of the Act. Accordingly, I find that the complaint is not well founded.

Unfair Dismissals Act, 1977 to 2015 – Section 1 – Constructive Dismissal – Contract Test – Reasonableness Test – Resignation - Complaint Not Well Founded - Safety, Health and Welfare at Work Act 2005 – Section 27 – Protected Act – Penalisation – Detriment – Complaint in relation to sexual harassment