A DELI WORKER who claims her manager sexually harassed her with inappropriate touching and conversation has been awarded €11,850 following a hearing before the Workplace Relations Commission (WRC).
The complainant worked for the company in question from 1 November 2013 until she resigned, claiming constructive dismissal on 26 February 2018.
Complainant’s case
The worker claims that her resignation was not voluntary and that it was brought about by the respondent and their words and actions.
In her case before the WRC, the woman said she was employed in one of the respondent’s three stores as a deli counter assistant.
She claimed that in early 2015 she was promoted to the role of manager of the deli area of the store, and said she was happy working in the shop at that time.
The worker alleged that shortly after she was promoted a new manager was appointed to the store manager position. She claimed that very soon thereafter they started to sexually harass her and other female deli staff with inappropriate touching, inappropriate conversation and constantly asking her to go out on dates with him.
She claimed that she told him she was married, expecting that this would dissuade him from these activities.
The worker alleged that she brought her complaints to the manager with overall responsibility for the three stores.
A meeting was arranged with this manager, which took place on 26 February 2018 and she detailed her complaints of sexual harassment, she claimed.
She alleged the manager in question “just laughed” at her and said if she did not like the work environment, she could resign her position.
The worker had attended her doctor because of the stress and depression she was experiencing, associated with the harassment, she claimed. Her doctor confirmed to her that the stress was entirely a result of the work environment she was experiencing, she said.
The discussion with the manager was the “final straw”, she said, and she resigned from her job on 26 February. She claimed this had been suggested by the manager she had just spoken with.
She alleged she was then so upset at losing her job that she decided to contact the owner of the three stores and advised her of her complaints of sexual harassment. She claimed she received no response from the owner.
The worker was then contacted by the manager, to whom she had spoken about her complaints, via a letter on 5 March 2018. In this letter, he expresses his “surprise” at her resignation, she claimed.
She alleged he said in the letter that she was “a valued team member” and asked “how they could keep her on board” and “if she wished to put forward an official grievance, if she felt mistreated”.
He asked that she respond by 10 March 2018, but that “if you wish to leave we will process your termination of employment from the 26th February 2018″, she alleged.
The complainant said that she responded to this letter from the respondent manager on 10 March 2018, reiterating her complaints, saying again that those complaints had been met with laughter and the suggestion from the manager that she write out her resignation if she was not happy.
She said that she asked for a copy of the grievance procedure to be sent to her together with a copy of the respondent’s policy and procedure on bullying and harassment in the workplace. She claimed she received no further contact.
She had sought her P45 as it would be required when she secured another job, but had still not received it by 1 June 2018, she claimed.
Respondent’s case
At the outset of the hearing, the respondent’s representative said they would not be proceeding with the hearing and that she attended only to seek an adjournment of the hearing.
The respondent did not attend.
The representative claimed they had already applied to the WRC for the postponement but had been refused on the evening before the hearing.
She claimed the respondent expected that the hearing would be re-arranged within three months of the current hearing.
“I advised that I was not prepared to postpone the hearing, not least because the complainant had been out of work since February, that the respondent had been given sufficient notification of the hearing date and that further delay would be unfair to the complainant,” the WRC adjudicator David Mullis said.
The respondent’s representative asked for time to call the respondent and Mullis granted this.
She returned to the hearing and outlined that she had been advised by the respondent to withdraw from the hearing if it proceeded. She then left the hearing advising that they may appeal the outcome if it was unfavourable to them.
Findings
In his findings, Mullis said the complainant made a “compelling case, in a very sincere way”.
In considering whether there was a constructive dismissal two distinct tests were being applied – the contract test and the reasonableness test.
In a separate case, the Labour Court said that “in a case of constructive dismissal the two ‘tests’ may be used either in combination or in the alternative”.
“The ‘reasonableness test’ asks whether the employer conducts his affairs in relation to the employee so unreasonably that the employee cannot fairly be expected with it any longer.
“What can be regarded as reasonable or unreasonable depends on the circumstances of each case, however, it is an important element of the reasonableness test that the employer has the opportunity to address an employee’s grievance or complaint.”
In this case, the WRC adjudicator said:
It is clear from the evidence of the complainant that the respondent acted so unreasonably in not addressing her complaints of sexual harassment that she lost trust and confidence in the respondent, leaving her with no option other than to resign her employment.
“The complainant, in constructive dismissal cases, is also required, prior to resignation, to invoke internal grievance procedures in order to afford the employer an opportunity to address the issues raised”, Mullis said.
I find that the complainant made reasonable efforts to raise her complaints and have them addressed. I find that the respondent failed to address them properly, or at all.
Mullis found that the complainant was entitled, in the circumstances, to terminate her contract of employment.
The complainant was then awarded €11,850.
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