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Zero tolerance policy for sexual harassment costs employer costs €17,500

In the case Chef v Contract Catering Co Adjudication officer Eugene Hanley awarded the Complainant €17,500 compensation for his unfair dismissal.

Facts

The Complainant was employed as a chef for the Respondent from November 2015 to October 2018. The Complainant submitted that on 13th June 2018 he was both physically and verbally assaulted by the senior chef. He made a complaint and he attended his GP and Solicitor. The Respondent was aware that a case was before the Personal Injuries Assessment Board. He was moved to another site as a result.

On 3rd September 2019 an incident occurred in which the Complainant was accused of harassment/sexual harassment. He submitted that he is a big fan of Dublin GAA and they had just won the All Ireland for the fourth year in a row. He was in good spirits as a result. He accepted that there were two incidents, one at 11am in which he asked a female operative that is employed by a facilities company to go to the cinema, which she declined. The second incident occurred that afternoon when he was leaving to join Dublin fans in celebrating their win, he said to the same female that ”it deserves a kiss” pointing to his cheek. She responded, “I’ll give you a smack” and said she would report him. He claimed that he thought this was just banter.

Upon receiving the complaint, the Complainant was immediately suspended by the Respondent with pay pending investigation. The complaint was investigated by the Respondent who claimed that all fair procedures were followed and the Complainant did not exhaust the process, as he did not appeal the decision. The Complainant argued that the procedure was flawed as the investigation was not carried out by an independent party and as he was not a union member he could only bring a work colleague to the investigation, which he declined. The Complainant submitted that he was in a bad place after the dismissal and therefore did not appeal the decision.

Decision

The Adjudicator, Eugene Hanley, noted that the Respondent operated a Zero Tolerance policy on harassment and sexual harassment in the workplace. Having considered the instances of harassment/sexual harassment that occurred, the Adjudicator concluded they were on the very low scale of possible harassment/sexual harassment. While the Adjudicator noted that suspension is not a sanction, he accepted that it does have wide-ranging implications for the person suspended.

The Adjudicator noted that the Respondent carried out an investigation, witness statements were taken and the allegations were proven and the Complainant accepted that he had done what he was accused of. The Respondent then took the decision to dismiss the Complainant. The Adjudicator concluded that the sanction of dismissal was wholly inappropriate and the Respondent did not seriously consider alternatives to dismissal.

The Adjudicator took into consideration the Complainant’s contribution to his dismissal and his failure to properly mitigate his financial loss. The Complainant was awarded €17,500 in compensation.

Note for Employers

Employers should beware of Zero Tolerance policies as the dismissal may be interpreted by the WRC as unfair. Zero Tolerance policies do not give the employer an opportunity to apply reasonableness or to assess the circumstances of the breach by the employee and therefore denies the employee the right to fair procedures and the dismissal is often deemed to be disproportionate.

Link: https://www.workplacerelations.ie/en/cases/2019/october/adj-00020741.html

1st November 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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