ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020741
Contract Catering Co
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 22/08/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as a Chef from 30th November 2015 to 12th October 2018. He was paid €14.28 per hour and worked 40 hours per week. He has claimed that he was unfairly dismissed and has sought compensation.
Summary of Respondent’s Case:
The Respondent advised the hearing that the Complainant did not utilise the appeal mechanism so he failed to exhaust the internal appeals mechanism and so his claim must fail.
The Complainant had previously made an allegation of a physical assault and verbal abuse. It was investigated but not upheld. He was transferred to another location within this large site.
On 3rd September 2018 in the kitchen a female operative who is employed by a facilities company made an allegation that the Complainant asked her for a kiss. She alleges that he leaned towards her making a gesture for a kiss and asked her when they were going to go to the cinema. She rejected this and told him that she was going to report him. He then called her a “tease”. A formal complaint of sexual harassment was submitted by the female. The Complainant was immediately suspended on full pay pending investigation, with effect from 6th September 2018. An investigation meeting was held on 24th September 2018 to address allegations of sexual harassment and an alleged customer complaint from this site which could potentially bring the employer’s name into disrepute. He was advised this this could lead to his dismissal. He was copied with the Staff Handbook including the disciplinary procedure. He was also given the right to representation. His defence was that this was simple banter. He denied calling the female a tease. He accepted that he said the wrong thing to the wrong person. Having concluded the investigation, including hearing from three witnesses a decision was taken to escalate the matter to a disciplinary investigation. A disciplinary hearing took place on 5th October 2018 on charges of serious allegations of sexual harassment. He was again given the right of representation and copied with the disciplinary procedure, investigation notes and witness statements. He chose to be unrepresented. He denied he called her a tease. He denied talking about going to a movie and later said that he couldn’t remember. He conceded that he asked her for a kiss. He stated that it was just banter. He was elated that Dublin had just won the All Ireland and was going out to the ‘homecoming’ celebrations. He accepted that this behaviour was not acceptable. The outcome was that it was found that his actions amounted to sexual harassment. Consideration was given to alternative sanctions, but it was concluded that the Complainant had destroyed the basis of trust and confidence essential to continuation of employment. A decision was taken to summarily dismiss him and this was confirmed in writing on 11th October 2018. He was given the right to appeal but he failed to do so. The Respondent relies upon Sec 6(4)(b) of this Act. They cited cases A Worker v Hotel  ELR 72, Nail Zone v Worker EDA 1023/2010 and Chef v Restaurant 2019 ELR in support. Based on the above cases the Respondent had to treat this case most seriouslyThey have a policy in place and the Complainant was trained in the policy. So, he was aware of what was expected of him in terms of his behaviour. They relied upon case Looney v Looney & Co Ltd UD 843/1984 concerning what a reasonable employer would do. They concluded that a reasonable response was to dismiss. They applied all fair procedures to the Complainant. He was informed in advance as to the allegations made against him. He was given the right of representation, given an impartial investigation and disciplinary hearing. All the evidence was considered before any decision was made. The Complainant’s actions contributed wholly to his dismissal. They accept that this was an isolated incident, but he had worked for only four days in that kitchen and he made inappropriate remarks and gesture to a female worker. His actions must be seen in that light. They were not convinced of the Complainant’s appreciation of the seriousness of the matter. They operated within the band of reasonableness within the scope of actions that warrant dismissal. The Complainant initiated the incident. The Respondent has a responsibility to all its employees and clients. There was a reference to another incident of assault against the Complainant. This dismissal case is completely separate to that one. The process was fair and impartial. The Complainant failed to appeal the decision so he has not exhausted the internal mechanism so his claim must fail. He has failed to mitigate his loss. He made only one application in November, none in December which is the busiest time of year. There is no issue with applications after March, however as he intends to go to college full time in September there is no loss beyond that date. The claim is rejected.
Summary of Complainant’s Case:
He stated 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. Following an incident on 3rd July 2018 the Respondent was aware that a case was before the Personal Injuries Assessment Board (PIAB). He was then moved to another site. Following his arrival at this large site he was subsequently moved on three occasions. The Complainant believes that there is a correlation between the June incident and this case. A sexual harassment claim is a most serious one.
Regarding the actual incident on 3rd September 2018 he stated that he was a great fan of Dublin Gaelic Football team, they had just won the All Ireland and had achieved four in a row. He was elated and in great spirits. He engaged in a bit of banter with the lady who made this complaint against him. He accepts that there were two incidents, one at 11.00am in the kitchen he asked her to go to the cinema and she declined. In the afternoon he was leaving to join Dublin fans in celebrating their achievement and he said to her “it deserves a kiss” pointing to his cheek. She responded, “I’ll give you a smack” and she said that she would report him. Later that night he reflected on the incident at work and concluded that he might have done something not appropriate. The next day he was told that he was to be moved to a new kitchen. His manager then told him that a report had been made to HR and he let him go home. He was suspended from work pending the investigation. He was then called to a disciplinary hearing and he was dismissed. He had an unblemished record. This was an isolated incident, it was work banter due to his excitement at the Dublin team’s achievements. The sanction was disproportionate. It was a reaction to the PIAB case., that was why an independent person should have carried out the investigation. The procedures applied were flawed. He was not given the opportunity to question the person who made the complaint. He was not a union member and so could only bring a work colleague, so he declined. He didn’t appeal the decision because he was in a bad place after the dismissal. He started looking for work in November but seriously looked for work after Christmas. In March 2019 he got a full-time job for two months earning €12.00 per hour. He then got a part time job in a hotel working 18 hours per week at €11.00 per hour. He is planning to go to college in September. Getting work has been made more difficult because it requires Garda vetting.
He stated that another incident involving a Kitchen Porter with the Respondent who was found to have inappropriately touched a female was relocated in the business and he was not dismissed.
The dismissal was unfair and he has sought compensation.
Findings and Conclusions:
I note the company policy on harassment and sexual harassment and that the Respondent company operates a zero-tolerance policy.
A company should be complimented for having a policy on harassment and/or sexual harassment.
However, a zero-tolerance policy can run the risk of not assessing the gravity of the case.
In this case, I find that there was an interaction between two mature persons.
I note that they had only been acquainted for a maximum of four days.
I note that the Complainant on a couple of occasions asked the female worker to go to the cinema with him and she rejected the offer.
I did not have evidence that he was persistent or demanding in his manner or demeanour.
I also note that on 3rd September as he was leaving to attend the Dublin football homecoming celebrations, he asked her for a kiss on his cheek, as he was in a celebratory mood.
I have considered these instances and conclude that they were on the very low scale of possible harassment/sexual harassment.
I find that having received a complaint from the female worker the Respondent immediately suspended him with pay pending an investigation.
While I find that such a suspension is not a sanction however it has wide ranging implications for the person suspended.
I refer to the judgement in the case Bank of Ireland v Reilly  IEHC 241. Noonan J.
“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin  3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire”.
I note that the Respondent carried out an investigation, witness statements were taken and the allegations were proven.
I note that the Complainant accepted that he had done what he was accused of.
I note that the Respondent then took the decision to dismiss.
I find the sanction of dismissal to be wholly disproportionate.
I note that the Complainant had a clean employment record.
I find no basis for the decision to dismiss.
I find that the punishment does not fit the crime.
I find the decision to dismiss was unfair on substantive grounds.
I find that the Respondent has a policy on harassment/sexual harassment.
I find that the Complainant was made aware of the allegations made against him.
I note that the Complainant was then suspended with pay pending an investigation.
I find that this action was an overreaction given the fact that he had no record of any disciplinary sanctions of any kind including that of harassment.
I find that the Respondent carried out an investigation, interviewed witnesses and established that the complaint was supported by the evidence.
I note that the Complainant accepted that he had done what he was accused of but described it as a bit of banter.
I note that he was offered representation by a work colleague which he declined.
I find that offering a work colleague to a non-union worker may not be satisfactory especially if that colleague does not have any representational experience and taking into consideration the fact that dismissal was at stake.
I note that following a disciplinary hearing he was summarily dismissed.
I find that the Respondent did not seriously consider alternatives to dismissal.
I find that the sanction of dismissal was wholly disproportionate to the actual situation that arose.
I find that it was a very serious decision to take to dismiss this person for sexual harassment given the rather low level of gravity in this case.
This decision means that it has massive implications for the Complainant in seeking employment.
Therefore, I find that the dismissal was unfair on procedural grounds.
I note that he failed to mitigate his loss earnestly, however he stated that he had a very bad reaction to his dismissal and it took him some months to recover.
I find that he has contributed to his dismissal by his behaviour.
I find that it was improper to behave in such a manner having been on that site for four days only.
I find that compensation is the most appropriate redress in this case.
I find that his contribution to his dismissal and his failure to earnestly mitigate his loss must be taken into consideration when deciding the quantum of the award.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons, I have decided that the dismissal was unfair both substantively and procedurally.
I have decided that the most appropriate redress is compensation.
I have decided that the Complainant has contributed to his dismissal and failed to effectively mitigate his loss and that this must be taken into consideration when deciding the quantum of the award.
I have decided that the Respondent should pay the Complainant compensation of €17,500 to be paid within six weeks of the date below.
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Unfair dismissal in sexual harassment case