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Bar lowered for Constructive Dismissal due to Sexual Harassment

In the recent case of A Chef v A Restaurant the Complainant was successful in her constructive dismissal claim regardless of not issuing an internal grievance.

Background
Upon commencing her employment at the Respondent’s restaurant, the Complainant was introduced to a male chef who was referred to as the “Italian Stallion”. From the outset, the chef made inappropriate comments of a sexual nature towards the Complainant. This man would regularly make comments about the Complainant’s body, her bottom and her hair and would run his genitals off her bottom and smell her hair. This escalated over time and on one occasion, he followed her into the walk-in freezer, trapped her by blocking the door and tried to kiss her against her will. Some weeks later, whilst the Complainant was in the changing area he grabbed her and bite her neck whilst pulling on her clothing. The next day when she was outside having a cigarette he followed her out, pushed her up against the bins and tried to kiss her neck again.

The Complainant felt that the matter had escalated out of her control and she feared for her safety. She had spoken to the Head Chef about several of the incidents but she felt that he was not taking the matter seriously, possibly because he was a friend of the chef, and because she was the only female in the kitchen. The Complainant reported the matter to the Head Chef, he told her he had spoken to the chef and promised her it would not happen again. Nothing changed after the incident where she was assaulted and so she went to the owner/director to report the matter, as she was unhappy about the outcome of her previous complaints. The Respondent submitted that there was a very jovial atmosphere in the kitchen and staff often made comments about each other’s appearance. He listened to her complaints and then sent her back to work in the kitchen with the chef. She was told she was being placed on supervision, which she assumed was for her protection.

The Complainant had a further meeting with the owner/director on 26th March in which she discussed her complaints. She was asked to sign the minutes of the meeting on 29th March which she did without reading them. She noted that the words “in jest” had been added to the end of two of her complaints, which the owner/director admitted to adding when questioned
The Complainant believed that the chef was placed on a week’s leave to facilitate an investigation, however, there was no investigation and nobody came to speak to the Complainant in relation to an investigation. Sometime later, she was told that by the owner/director that he had fired the chef, however, the Complainant later discovered that the chef was working in the sister restaurant.

The Complainant noticed a change in attitude and behaviour towards her from other staff members almost immediately. Such behaviour included comments such as “oh be careful there, she might report you” if she had to squeeze past someone in the kitchen. Similar comments were made on a regular basis and the Complainant found it extremely difficult to work in the type of environment.

The final straw for the Complainant manifested in an incident on 14th May 2016. The Complainant left the kitchen in tears after being shouted and sworn at by the head chef. She sent a text to the owner/director explaining that she was not feeling well and that she was going to the doctor. She told him that she would get a doctor’s note and submit it. The certificate stated “stress” and was dated 17th May 2016 and covered the period 15th May 2016 to 28th May 2016. On 19th May the Complainant received a formal letter from the owner/director asking if she was well enough to attend to discuss her work and the issues she was having. It stated “As you can appreciate, I will still need to address the matter of you walking out on shift and sickness reporting”. This letter only served to exacerbate the complainant’s stress. Five days after the complainant went on sick leave she noticed a post containing a photograph on the chef’s Facebook page. The photograph was of a sign situated in the respondent’s restaurant kitchen stating “Welcome back XXX…we missed you” The Complainant was horrified and felt that nobody was taking her complaint seriously.

The Complainant developed an ulcer due to the stress she was under. She ultimately resigned from her position in August and accepted that she did not raise a complaint under the grievance procedure in relation to the staff’s attitude towards her. She felt that there was little point as her previous complaint was not taken seriously. The Respondent conceded that it did not have a policy to deal with harassment and sexual harassment in the workplace.

Decision
As the claim is one of constructive dismissal, the burden of proof is high and rests with the Complainant. The Adjudicator must determine whether it was reasonable for the Complainant to terminate her contract of employment. The Adjudicator surmised the case conceding that the Complainant was subject to a relentless campaign of unwanted physical and verbal behaviour by an employee of the respondent. She reported that matter to her boss who more or less dismissed the chef’s actions as “banter”. The Complainant made at least three complaints about the chef and no action was taken and the chef was never subjected to disciplinary process even after admitting to the allegations on the 30th.

The Adjudicator made it clear that the owner/director did not take the complaints seriously. She noted that although stated by the Respondent that he was “taken aback” by the complaints, he then proceeded to say in evidence that he had to “assess just how uncomfortable she was before I could decide whether to treat the matter formally or informally”. The owner/director then proceeded to employ the chef at the sister restaurant. The Adjudicator stated that these were not the actions or thoughts of an employer who takes allegations of sexual harassment seriously. She continued stating …”there should have been a thorough investigation immediately following the complainant’s original complaints. The chef should have been suspended pending the outcome of that investigation. When the chef admitted the allegation on the 30th March, he should have been disciplined.”

The Adjudicator determined that the Complainant was justified in not reporting the second incident that led to her resignation as her belief that it would not be taken seriously was well founded. The Complainant was subjected to a campaign of daily unwanted physical and verbal behaviour of a sexual nature and then to be the subject of snide remarks by various members of staff following the chef’s departure, the adjudicator determined that it was reasonable for her to terminate her contract of employment.
The Complainant was awarded €15,000 as she mitigated her financial loss. It seems that the burden of proof required in a Constructive Dismissal claim was lowered in this case due to the sexual harassment. It is worth noting that the Complainant would have been better lodging the complaint under the Employment Equality Act, as the award would not have been limited to financial loss.

Link: http://www.workplacerelations.ie/en/Cases/2018/March/ADJ-00005898.html

For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580

28th March 2018
Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18

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