HSD235

1. Appeal Of Adjudication Officer Decision No(S).ADJ-00025758 CA-00032810-002

BACKGROUND:

2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014. A Labour Court hearing took place remotely on 10 May 2023. The following is the Determination of the Court:-

DETERMINATION:

This matter comes before the Court as an appeal by Deirdre Walsh (the Appellant) against a decision given by an Adjudication Officer under the Safety Health and Welfare Act, 2005 (the Act) in her complaint against Bridgehall Taverns Limited t/a Uluru Bar and Restaurant (the Respondent). The Adjudication Officer decided that the complaint under the Act was not well founded.

The fact of dismissal is in dispute.

Background

The Appellant worked for the Respondent as a bar person from the Halloween weekend in 2017. Her employment terminated as a result of her resignation on 11^th September 2019.

It is common case that the Appellant was the recipient of obscene, vile and degrading text communications from Mr D who was a customer and some form of worker or contractor of the Respondent.

The Appellant contends that she was penalised within the meaning of the Act.

Summary submission of the Appellant.

The Appellant made no written or oral submission to the Court in support of her appeal under the Act.

When questioned by the Court the Appellant clarified that her contention was that she was constructively dismissed by the Respondent within the meaning of the Unfair Dismissals Act, 1977 (the Act of 1977) for having raised a concern as regards a matter of her health and safety at work and that her constructive dismissal amounted to penalisation within the meaning of the Act.

Summary submission of the Respondent

The Appellant was provided with the company handbook on 22^nd February 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 enable 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 10^th March 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 on his return to premises he would apologise to the Appellant and that he would undertake not to repeat his behaviour.

On 11thn July 2019 the Appellant submitted a medical certificate stating that she was suffering from ‘work related stress’. She returned to work on 8^th August 2019.

On 23^rd August 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 24^th August 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 24^th August 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

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 on Berber 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.

Relevant Law

Section 27(1) of the Act in relevant part provides as follows:

• 27.(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

  (2) Without prejudice to the generality of subsection (1), penalisation includes—

  • (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

27(3) An employer shall not penalise or threaten penalisation against an employee for—

• (a) acting in compliance with the relevant statutory provisions,

  (b) performing any duty or exercising any right under the relevant statutory provisions,

  • (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

• (5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

• “ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

• “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
  
  

The Appellant alleges that she was constructively dismissed within the meaning of the Act of 1977 in response to her making a complaint to her employer as regards a matter relating to safety, health or welfare at work. She contends that her constructive dismissal amounts to a penalisation within the meaning of the Act.

She has, separately, contended in a complaint under the Act of 1977 that she was constructively dismissed within the meaning of that Act as a result of the unreasonable behaviour of her employer. The Court has, separately, dealt with an appeal by the Appellant of an Adjudication Officer’s decision given under the Act of 1977 in respect of that complaint and has made an award to the Appellant in respect of her complaint of unfair dismissal under that Act.

Having regard to the provisions of the Act at Section 27(5) as set out above the Court concludes that the Appellant is statute barred from securing relief under the Act in respect of her alleged penalisation which she contends took the form of constructive dismissal within the meaning of the Act of 1977.

In the circumstances therefore, the Court concludes that the appeal of the Appellant under the Act must, by operation of the law, fail.

Decision.

The Court has decided that the within appeal must fail.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
29 June 2023	Chairman