A Bar Person v A Public House and Restaurant. ADJ-00025758. Workplace Relations Commission

Judgment Date25 November 2022
Year2022
Date25 November 2022
Docket NumberADJ-00025758
CourtWorkplace Relations Commission
RespondentA Public House and Restaurant
Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI No. 359/2020, which designates the WRC as a body empowered to hold remote hearings.

The parties were informed that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All witnesses who gave evidence were sworn in. The following persons gave evidence on oath at the oral hearing, namely: the Complainant and Garda A (on behalf of the Complainant) and Mr. Y (on behalf of the Respondent). The parties were afforded the opportunity to put questions to the other sides witnesses by way of cross-examination at the oral hearing.

The parties were also informed by the Adjudication Officer at the hearing that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the WRC are now held in public and the names of the parties are published in the subsequent written decision unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private. The parties did not make any application for the names of the parties to be anonymised in the written decision. However, notwithstanding the fact that the parties did not make any application in this regard and given the sensitivities of the issues connected with the instant complaints concerning sexual harassment, I have decided to exercise my discretion under the aforementioned legislative provisions to anonymise the identities of the parties in this decision due to the existence of “special circumstances”.

Preliminary Issue

The Complainant’s representative confirmed at the outset of the hearing on 19 October, 2021 that the Complainant wished to proceed with both the complaints under the Unfair Dismissals Act 1977 and the Safety Health and Welfare at Work Act 2005. The Complainant’s representative also confirmed that the act of penalisation to which she was subjected within the meaning of Section 27 of the Act of 2005 was that she was forced to resign her position in circumstances which amounted to a dismissal i.e. a constructive dismissal. The Complainant contends that the alleged constructive dismissal constitutes an act of penalisation within the meaning of Section 27(2)(a) of the Act of 2005.

Having regard to the foregoing, the following questions arose by way of a preliminary issue of jurisdiction in relation to the interpretation of the provisions of Section 27(5) of the Act of 2005, namely:

  • 1) Whether the provisions of Section 27(5) of the 2005 Act require a complainant to elect between pursuing a complaint of penalisation under that Act (if it results from dismissal as referred to in subsection (2)(a)) and a complaint of unfair dismissal under the Unfair Dismissals Act 1977 arising from such penalisation? and
  • 2) Whether the Adjudication Officer has jurisdiction to inquire into parallel complaints of penalisation under the 2005 Act (which is grounded on a claim of dismissal as referred to in subsection (2)(a)) and a complaint of unfair dismissal under the Unfair Dismissals Act, 1977 arising from such penalisation and if so, in circumstances where the complainant was to succeed in both complaints, is it a matter for the Adjudication Officer to decide under which enactment that relief should be granted?

Having considered this matter, I informed the parties that I would proceed to hear the evidence in relation to the complaint under the Act of 2005 and adjourn the proceedings at that juncture to allow the parties an opportunity to make written submissions on the abovementioned questions. The parties were afforded the opportunity to adduce all relevant evidence in relation to the alleged act of penalisation i.e. the constructive dismissal at the hearing on 19 October, 2019. Both parties forwarded written submissions in relation to the abovementioned questions following the hearing on 19 October, 2021.

Having carefully considered the written submissions of both parties, I confirmed to the parties on 21 March, 2022 that I was satisfied that the provisions of Section 27(5) of the Act of 2005 do not require a complainant to elect between pursuing a complaint of penalisation under that Act, if it results from dismissal as referred to in subsection (2)(a), and a complaint of unfair dismissal under the Unfair Dismissals Act 1977. I am therefore satisfied that I am obliged to hear the evidence in relation to both the complaints under the Act of 2005 and the Act of 1977. I further informed the parties that I was satisfied that it is also clear from the provisions of Section 27(5) of the Act of 2005 that a complainant is precluded from obtaining relief in the event of a successful claim under both that Act and the Act of 1977, and in such circumstances the Adjudication Officer is restricted to making an award pursuant to the redress provisions under one of the aforesaid enactments.

I also informed the parties that it would be necessary to reconvene the hearing in this matter to conclude the hearing of evidence in relation to the complaint under the Act of 1977. The hearing in this matter was reconvened on 2 June, 2022 for this purpose and the parties were afforded the opportunity to adduce all further relevant evidence in relation to the complaint under the Act of 1977.

Background:

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.

Summary of Complainant’s Case:

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...

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