FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: BRIDGEHALL TAVERNS LIMITED T/A THE ULURU BAR & RESTAURANT (REPRESENTED BY DAN WALSHE B.L. INSTRUCTED BY NOLAN FARRELL & GOFF SOLICITORS) - AND - DEIRDRE WALSH (REPRESENTED BY SEAN ORMONDE & CO. SOLICITORS) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S).ADJ-00025758 CA-00032810-001 DETERMINATION: The fact of dismissal is in dispute. Summary submission of the Appellant. The Appellant worked for the Respondent as a bar person from the Halloween weekend in 2017 until September 2019. On 8thMarch 2019 the Appellant was in the Respondent’s premises socially. She was not at work. Mr D, a regular customer was also present. Mr D was well known to the Appellant, having been a regular customer in the Respondent’s premises. While waiting for her drinks the Appellant spoke with Mr D. The Respondent’s security person took a photo of the two of them with the Appellant’s phone. The Appellant came to work the following night. Mr D came in. He called the Appellant over and they had a conversation about the photo taken the previous night. Mr. D gave the Appellant his mobile number and asked the Appellant to send the photo to him, which she did by text message. Mr. D responded to the message shortly afterwards. The Appellant submitted a copy of that reply to the Court. The Appellant submitted that the response was explicitly sexual in nature and was vile, humiliating, degrading and disgusting and made the Appellant very uncomfortable. It caused her to have a severe panic attack. The Appellant contacted her manager who immediately told her to report it to the Managing Director of the Respondent Mr B. The Appellant did so. On the following day, 10th March 2019, the Appellant met with Mr B and a member of An Garda Siochana at the Respondent’s premises, her workplace. The Appellant was told that what she had been sent constituted sexual harassment, perhaps at a criminal level. The Appellant was unsure as to what action to take. She spoke with Mr B and it was agreed Mr D should be ‘barred’ from the licensed premises. Mr B told Mr D to stay away from the bar and the Appellant was content with this. The Appellant submitted that she suffered major confidence issues and some anxiety as a result of the comments made to her but was willing and capable of working with the Respondent now that Mr. D had been barred. On 23rdAugust 2019 the Appellant was at work. She entered the “Middle Bar” between 2:30 and 3:00pm when she saw Mr. D standing at the bar. She paused for a brief moment in shock and fear as she had understood that Mr. D was to be ‘barred’. He extended his hand as if in friendship. The Appellant did not take it. She turned and walked out instead. The Appellant became agitated and concerned that Mr. D could just walk back into the bar after saying such things to her by text message and after she had expressed her concerns to Mr. B. The Appellant made Bank lodgements as originally planned and then returned to the pub where she saw Mr B in the company of Mr D in the Carvery where they were having lunch together. The Appellant was shocked that Mr. B appeared to be on close and friendly terms with the man who had subjected her to what she submitted to the Court was sexual harassment. The Appellant contacted her supervisor, explained the situation and got permission to leave her work early that day. On 24thAugust 2019 the Appellant came in to work. At about 22:20 she saw Mr. D again at the bar. The Appellant 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 this. She was upset and agitated. Mr. B came out to speak to her. The Appellant and Mr. B had a confrontational conversation in which she made clear her level of discomfort and the fact that she felt unsafe in the workplace with Mr. D around. The Appellant submitted that she put it to Mr B that she had thought that Mr D was ‘barred’ from the Respondent’s premises. Mr. B responded to her to say that he had been ‘barred’ for six months but that he has now returned as a customer. The Appellant put it to Mr B that she had been sexually harassed by Mr D and did not feel comfortable being in the same room as him. Mr B responded to say that he could not ‘bar’ Mr D for that. The Appellant reminded Mr B that he had a duty of care to his workers and that he could not expect her to work in an environment where she felt intimidated, uncomfortable and threatened. Mr B responded to say the did not believe that she felt intimidated. The Appellant submitted that she became more and more upset as she was now being told how to and how not to feel. She felt that Mr B was accusing her of lying about how this event had impacted her. She submitted that Mr B advised her that he would not ‘bar’ Mr D again, told her that he could not ‘bar’ everybody and advised her that she should speak to Mr D. She advised Mr B that she felt intimidated, uncomfortable and threatened in her work and around Mr. D and against that background Mr. B was instructing her to talk to Mr D and consequently leaving her completely open to any further sexual remarks he might make, without anyone to witness them. The Appellant was being put in a very vulnerable position by Mr B and the Respondent had and was continuing to show no duty of care for her as an employee or what she considered to be a be a very serious allegation of Sexual Harassment. The Appellant submitted that she put it to Mr B that she did not want to talk to Mr D and that she did not want to be in the same room as him. She advised Mr B that following his vile and disgusting text message she now knew what Mr D was thinking when he was looking at her. The Appellant submitted that Mr. B then made a comment to the effect that he was sure lots of men were thinking that too and that he could not ‘bar’ them all. This response from Mr B left the Appellant feeling hurt and victimised by the Respondent. Mr B’s response to the Appellant at this time crystallised the Appellant’s understanding that she was not respected or protected in in her employment with the Respondent. The Appellant ended her conversation with Mr B on that occasion by making it clear that should the Respondent not take appropriate action to support her, it would not be possible for the Claimant to continue in her employment. The Respondent was thus on notice of the Claimant’s intention of resigning her position due to the severity of the situation and the impact it was having on her. The Appellant tendered her resignation on 11th September 2019 with immediate effect. Mr B e-mailed the Appellant on 16th September 2019 requesting the Appellant to make a formal complaint in the hope of resolving the issues. However, as Mr B had earlier advised the Appellant that he could not ‘bar’ Mr. D again and that he did not believe that this issue had impacted her in the manner she stated it had, she decided that she could not make a formal complaint to a person who did not believe what she was saying. Mr. B was the Managing Director of the Respondent company. She had lost all trust and confidence in him and there was no higher level to go with her complaint. The Appellant submitted that there is no doubt that the behaviour at the centre of this case constitutes sexual harassment of the most severe degrading and humiliating form and the Respondent’s failure to acknowledge the severity of the situation and the impact this was having on the Appellant constituted a good and valid reason to resign from her employment. Summary testimony of the Appellant The Appellant gave evidence in accordance with her written submission. She stated that she had been very intimidated by the behaviour of Mr D in March 2019. She said that when she saw Mr D on the premises in August, she discussed the matter with Mr B. She told him that she had thought that Mr D had been ‘barred’ for life, but Mr B said that he had only been ‘barred’ for six months. Mr B advised her that he did not believe that she was affected by Mr D’s behaviour in the manner she stated. He stated to her that lots of men think the same as Mr D did about her and that he could not ‘bar’ them all. She said that she felt wholly let down by the Respondent. Under cross examination she agreed that at the Respondent’s request she had met with Mr B and a Garda who was known to Mr B. At that meeting she was prepared to consider that the matter had been dealt with by the Respondent’s undertaking to her to ‘bar’ Mr D for life. She stated that at no time did she agree that a suspension of six months would be satisfactory from her point of view. Neither did she agree that at any time she felt that an apology from Mr D to her was relevant to or would be part of the resolution of the matter. She was delighted when Mr D was ‘barred’ but everything changed when he was permitted to be in the premises five and a half months after the incident. In response to questioning by the Court the Appellant stated that she did not utilise the grievance procedure before she resigned because she had raised the matter with the Managing Director, and it was his behaviour six months after the incident which caused her to resign. There was no means of complaining to a higher level than Mr B. Summary submission of the Respondent The Appellant was provided with the company handbook on 22ndFebruary 2018 which included its Grievance / Disciplinary procedures and Bullying and Harassment Policy and Procedures. The Appellant did not avail of the Respondent’s procedures outlined in the company handbook which would have enabled the Respondent to investigate the alleged cause of her work-related stress and to seek to resolve the problem. The Respondent does not in any way condone the behaviour of the customer and has a zero-tolerance approach to such behaviour. The Respondent acted quickly once notified of the behaviour. The Respondent’s managing director, Mr B, met with the Appellant and a member of An Garda Siochana on 10thMarch 2019. It was agreed that the customer in question would be ‘barred’ for a period of six months. The Appellant was aware of that agreement. The Appellant was also aware that two conditions applied to a return of the customer to the premises, and these were that (1) on his return to the premises as a customer he would apologise to the Appellant and (2) that he would undertake not to repeat his behaviour. On 11th July 2019 the Appellant submitted a medical certificate stating that she was suffering from ‘work related stress’. She returned to work on 8thAugust 2019. On 23rdAugust 2019 Mr B asked the customer to call to the premises to discuss security work. Mr B met with the customer in a quiet corner of the bar. This was five and a half months after the customer had been ‘barred’ from the premises. On 24thAugust 2019, as the customer’s exclusion from the premises had been deemed to have been concluded by Mr B, the customer returned to the premises. The Appellant had made no objection to the customer’s return to the premises. In a conversation with the Appellant on 24thAugust Mr B advised her that she did not have to serve the customer. He also advised her that it was his understanding that the customer was excluded from the premises for a period of six months only. He advised the Appellant that she could pursue civil or criminal proceedings if she wished and recommended to her that she contact the Gardai. Mr B does not accept that he told the Appellant that he did not believe her. Instead, he asked her to explain how she felt so that he could understand her point of view. Mr B does not accept that he said “I am sure lots of men are thinking that too. I can’t bar them all”. He accepts that he indicated that lots of people look at others in an inappropriate manner and that inappropriate comments are sometimes made but he made it clear that he did not agree with this and did not condone it. Mr B did advise the Appellant to speak to the customer in the context of his return to the bar and in order to bring about an apology and to receive his assurances as to his future behaviour. The Respondent was at all times prepared to investigate any grievance raised by the Appellant, but no such grievance was ever raised. The burden of proof rests upon the Appellant to establish that she was dismissed. The Respondent contends that she was not. In that context the case law makes clear that the Appellant must establish that a fundamental breach of the employment contract has occurred which undermines the core of that contract and or that the behaviour of the employer has been so unreasonable as to mean that it was reasonable for her to resign. There was no breach of an express term of the Appellant’s contract, nor was there a breach of any term which can reasonably be implied into her contract. Relying onBerber v Dunnes Stores [2009] IESC 10,it is clear that for a complaint of constructive dismissal to succeed, the Appellant must establish that conduct of the Respondent was so unreasonable as to mean, by an objective standard, she could not have been expected to put up with it. Relying on a range of authorities it is also clear from the case law that the Appellant’s failure to engage the grievance procedures of the Respondent is fatal to her complaint of unfair dismissal. Summary testimony on behalf of the Respondent Mr B gave evidence on behalf of the Respondent. He is and was the Managing Director of the Respondent company and the owner of 50% of the Respondent company. He stated that did receive a text from the Appellant on 10thMarch 2019 after she had received text communication from Mr D. Mr B told her then that he would deal with the matter. He met her later that day and told her that the Gardai would have to be involved. That day the witness met with the Appellant and a member of An Garda Siochana who the witness had contacted by ‘phone. At the conclusion of that meeting the witness said that the customer was ‘barred’ for six months and that it was open to the Appellant to take a civil case against Mr D. On 23rdAugust the witness spoke to Mr D regarding certain security matters. The witness had lunch with Mr D on the premises and told him that his period of exclusion had ended and asked him to apologise to the Appellant and told him that he must never behave in that manner again. On that occasion the Appellant entered the area where he was meeting Mr D and Mr D extended his hand to her as if to shake it. The Appellant had no forewarning that Mr D would be on the premises that day and Mr D was premature in attempting to engage with the Appellant. He was subsequently advised that day by a manager, Mr J, that the Appellant had seen him, the witness, in the company of Mr D and that she had left the premises. On the following night, the 24thAugust, which was a busy night, the witness met the Appellant on the premises. He confirmed to her that Mr D’s period of exclusion had ended. However, he advised her that she did not have to serve him. When asked by his counsel whether he had said to her on that occasion that a lot of people feel like Mr D but that he could not ‘bar’ them all, he stated that he would find it strange if he would have said that. At that meeting he told the Appellant that he would talk to her on the following day, and she stated that she felt she was being constructively dismissed. He stated that he spoke to his HR adviser, and it was agreed that the Respondent would follow procedures. There was no contact from the Appellant thereafter. Under cross examination the witness stated it had been agreed in March 2019 that Mr D would be ‘barred’ for six months and that he could then return provided he apologised to the Appellant and undertook not to behave in that manner again. He agreed that in fact he allowed Mr D to return to the premises after five and a half months and that Mr D had not made any apology or given any undertaking as regards future behaviour at that stage. He also agreed that he did not forewarn the Appellant of the termination of the exclusion of Mr D. The witness agreed that the Appellant, at their meeting on the 24thAugust, asked him if he knew what Mr D had put in a text to her and he replied that he did know but Mr D had been ‘barred’ and he assured her that she did not have to serve him. The witness said that could not recall that when the witness told him that she could not work if Mr D was on the premises because she would know what he is thinking that he said to her that he was sure a lot of men thought like that but that he could not ‘bar’ them all. He stated that he would be surprised if he had said that. When asked to clarify his evidence by the Labour Court, the witness stated that Mr D continued to work informally for the Respondent outside but within the environs of the Respondent premises during the period when he was excluded from the premises. Relevant Law Section 1 of the Act defines ‘constructive dismissal’ in the following manner:
The Appellant is alleging constructive dismissal and the fact of dismissal is in dispute. The initial onus of proof therefore rests upon the Appellant to establish facts which prove that she would not have resigned from her employment but for her employer’s behaviour. The Act at Section 1, as set out above, articulates the circumstances in which a resignation may amount to what is commonly termed an unlawful constructive dismissal. It is trite law that a constructive dismissal can arise where the employer’s conduct amounts to a repudiatory breach of the contract of employment which would “entitle” the employee to resign his position, often referred to as the “contract test”. As held inWestern Excavating (ECC) Ltd v Sharp [1978] IRL 332, a repudiatory breach of the contract arises where an employer is
The submission and evidence of the Appellant is not that she left her employment because of the behaviour of a customer of the Respondent, Mr D, but that she left her employment because the behaviour of the Respondent in the person of Mr B, the Managing Director, was such as to mean that her workplace was intolerable to her and that her employer failed to take all reasonable steps to ensure that she felt safe and was respected in her workplace and to ensure that she was not exposed to unreasonable and unacceptable working conditions. She submitted that the employer’s behaviour amounted to an undermining of the core of her contract of employment and behaviour which was so unreasonable that she was entitled to regard herself as having been constructively dismissed. There is no dispute between the parties that a customer of the Respondent, who was also some form of a worker or contractor engaged by the Respondent in the sense that he discharged some form of security role, sent text communications to the Appellant which were unacceptable. The Appellant submitted a copy of the text communication at issue to the Court. There is no doubt that the text communication as submitted to the Court was explicitly sexual in nature and was vile, humiliating, degrading and disgusting. The Appellant’s evidence to the Court that such an explicit and obscene communication made her very uncomfortable was compelling and convincing. It is clear to the Court that the Respondent’s initial response to the matter of the text communication was, in the understanding of the Appellant, supportive and direct in that the Respondent removed the offending customer, Mr D, from the Respondent’s premises which was the workplace of the Appellant. That removal from the premises was decided upon at a meeting between the Appellant, the managing director of the Respondent, Mr B, and a member of An Garda Siochana on the Respondent’s premises, which is a pub. The Court heard no evidence from the member of An Garda Siochana as regards that meeting and it was not altogether clear what the role of the Garda at that meeting was. The Appellant was clearly satisfied that the matter had been dealt with at that time by the exclusion of the offending customer from her workplace. The Court was presented with a direct conflict of evidence between the Appellant and Mr B as regards what the terms of the decision to exclude the customer amounted to. The Appellant gave testimony that she had no knowledge of a time limitation on the exclusion of the customer from her workplace and no knowledge of a conditionality attaching to the return of the customer after the lapse of that time period in that he would be required to apologise to her and to undertake not to repeat his unacceptable behaviour. Mr B gave evidence to the effect that the agreement with the Appellant was that the customer would be excluded from the premises for six months, after which time he could return provided he apologised to the Appellant and undertook not to repeat his behaviour. The Court notes that, in the event, and notwithstanding the evidence of Mr B, the customer was permitted to return to the premises before the lapse of six months without an apology being given to the Appellant or an undertaking being given as regards future behaviour. The second evidential conflict relates to what was said by Mr B to the Appellant at their meeting on 24thAugust 2019. The Appellant stated in evidence that the Managing Director stated to her in that meeting that many men thought like Mr D and that he could not bar them all; Mr B stated in evidence that he could not recall having said such a thing and that he would be surprised if he had. The Court accepts the evidence of the Appellant in this respect in circumstances where she gave clear and cogent evidence on the matter and where Mr B stated in evidence that he could not recall the statement having been made as distinct from stating that he could recall that the statement was not made. Taking these factors into account together with the demeanour of the Appellant in evidence which the Court found credible, the Court accepts, on the balance of probability, that no time limit was originally set down in terms of the exclusion of the offending customer and neither were conditions set out which, if met, would secure the termination of the customer’s exclusion. Having established these facts on the balance of probability, the Court concludes that the Respondent and the Appellant initially, on 10thMarch 2019, accepted that the presence of Mr D in the workplace of the Appellant was not acceptable to either the employer or the Appellant. It was that understanding which led the Appellant and the employer to be satisfied that she would be enabled to continue in her employment. In the event the Respondent in August 2019 unilaterally and without notice to the Appellant, terminated the exclusion of the customer. The circumstances of the termination of the exclusion occurred outside the terms of any purported arrangements as regards time limits and conditionality. The customer was invited to return to the premises by Mr B before what he contends was the agreed six-month period had elapsed and without what he contends were the conditions for a return to the premises which related to an apology and an undertaking as regards future behaviour being given. The Court accepts that the Respondent’s behaviour in these respects was, to an objective standard, unreasonable to the degree that the Appellant was justified in regarding herself as having been constructively dismissed. The decision of the Respondent to restore to the workplace of the Appellant without notice or engagement with her, a customer who had created such distress to her that he had earlier been excluded from the workplace, amounted to behaviour which was so unreasonable as to mean that she could not be expected to continue in her employment. The evidence of the Appellant to the effect that Mr B trivialised her reaction to the return of Mr D as a customer of the Respondent and made assertions as regards the likely thought processes of other male customers compounded the unreasonableness of the behaviour of the Respondent. The Court has considered the submission of the Respondent to the effect that the Appellant’s failure to utilise the grievance procedure of the Respondent to raise any issue as regards her employment is fatal to her complaint. However, it is clear that the Managing Director/joint Owner of the Respondent engaged with the Appellant at all stages without encouraging her to utilise the grievance procedures in place. It was common case that the Managing Director himself and no other manager responded to the initial issue of the customer’s behaviour, and it was the Manging Director who decided to terminate the arrangements which had been put in place by agreement between him and the Appellant in March 2019. The Court, as outlined above, accepts that the Managing Director made assertions to the Appellant as regards the likely thoughts of other men towards her and that he stated to her that he did not accept that she was affected in the manner she contended by the return of the customer. In these circumstances the Court accepts the submission of the Appellant that she could not reasonably have been expected to engage the grievance procedures of the Respondent. In reaching this conclusion the Court has taken into account the nature of the business of the Respondent and the apparently active operational role of the managing Director on a day-to-day basis as outlined at the hearing of the Court. That active operational role is demonstrated by the fact that the Managing Director did not rely upon any other manager to deal with any of the events giving rise to the within appeal. The Court therefore concludes that the Appellant was unfairly dismissed within the meaning of the Act. Award The Court has noted the earnings of the Appellant prior to the termination of her employment and has noted her attempts to mitigate her losses. The Appellant was under an obligation to make every effort possible to mitigate her losses by seeking alternative employment. The Court notes that while she secured some employment as outlined to the Court and continues in employment at a lesser rate of pay than she enjoyed in the employment of the Respondent, in the view of the Court she has failed to make consistent adequate efforts to mitigate her continuing losses. In all of the circumstances therefore, the Court decides that an award of €15,000 is just and equitable taking into account the economic loss suffered by the Appellant attributable to her dismissal together with her failure to make adequate efforts to mitigate those losses. Decision. The Court has decided that the Appellant has discharged the burden resting upon her to establish that her employment terminated by reason of dismissal and that her dismissal was unfair within the meaning of the Act. In those circumstances, the Court orders that compensation in the amount of €15,000, which is the amount considered by the Court to be just and equitable in the circumstances, be paid to her by the Respondent. The decision of the Adjudication Officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
