SECTION 27, EMPLOYMENT EQUALITY ACT, 1977
(REPRESENTED BY DOYLE, LOWNEY & CO. SOLICITORS)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
1. Alleged constructive dismissal of the worker in contravention of Section 27 of the Employment Equality Act, 1977.
2. The Company is involved in the restaurant/hamburger business in Wexford. The worker commenced her employment with the Company in July, 1995. Her wages were £2.50 per hour and averaged £135 per week. She alleged that the restaurant's personnel manager sexually harassed her (details supplied to the Court) on the 4th of September, 1995, when she went to the apartment which adjoins the restaurant and which is the residence of the manager and his wife. The worker's family had a close relationship with the manager's family and the worker frequently visited the apartment in the morning in order to change into her uniform for work. The manager denied the allegation of sexual harassment and constructive dismissal.
The complaint was referred to the Labour Court on the 10th of December, 1995, under Section 27 of the Employment Equality Act, 1977. The Court investigated the complaints in Wexford on the 24th of April, 1996. Both parties made written submissions to the Court, which were expanded upon orally during the course of the hearing. The worker's father and the manager's wife also made oral statements to the Court.
3. 1. The personnel manager took advantage of his position and exploited the trust and family friendship that existed. He treated the employing of the worker in the restaurant as a licence to make advances towards her, advances which she found extremely offensive and threatening. She suffered extreme stress arising from the incident and has not worked since (details supplied to the Court).
2. The incident alleged was not denied by the manager to have taken place.
3. Taking into account the worker's age and the nature of the incident, and the fact that she has not worked since the incident, she should be paid the maximum compensation permitted.
4. 1. The statement of the worker is inaccurate and is disputed (details supplied to the Court).
2. If the alleged incident took place, which is denied, it took place (i) outside normal working hours, (ii) outside of the employer's premises and in the accommodation of the employer's manager and (iii) at a time and place outside of the control of the employer.
4. The worker was not dismissed by the employer.
5. The worker was not obliged in the course of her employment to attend the manager's residence and did so of her own accord.
The Court is satisfied that the worker suffered discrimination by the Manager of her employer, in that he made sexual advances to her, and continued to do so against her express wishes.
The Court is also satisfied that as a result of the discrimination, the worker had to leave the employment, being unable to continue working in close proximity to the Manager. Given the particular circumstances under which the parties were working together, the Court is satisfied that there was a constructive dismissal of the worker and that the complaint is well-founded.
The Court has taken into consideration the defence offered on behalf of the employer. It is common case that the acts of which the worker complained occurred outside of working hours and at the private residence of the Manager. It is claimed that the employer could not be held responsible for discrimination in these circumstances.
The Court rejects the arguments made on behalf of the employer. The Manager who committed the acts of discrimination represented the employer in his dealings with the Applicant. He had control over the manner in which she did her work, and was responsible for the working environment in which she carried out her duties. She was at his residence on foot of a prior arrangement to change into her uniform before commencing her working day. For that purpose, therefore, the Manager's residence was de facto the working premises, and the worker was commencing her duties. The Manager should have exercised self-control and common-sense so as to ensure that, in preparing for her duties, the worker was treated with the same deference and respect as she would have been treated in the actual restaurant premises. Furthermore, given the close relationship between the family of the Manager and that of the worker, the Manager should have been careful to maintain the employer/employee relationship when he met the worker in a quasi-working environment. Instead he took advantage of the surroundings and of the employee's trust to make advances to her, and thereby made it impossible for her to continue in the employment.
The Court will make an order directing the employer to pay to the worker the sum of £2,000 compensation, which the Court considers reasonable in the circumstances of the case.
Signed on behalf of the Labour Court
7th October, 1996______________________
Enquiries concerning this Order should be addressed to Michael Keegan, Court Secretary.