A female bar-staff worker who was sent "vile, humiliating, degrading and disgusting" sexually explicit texts from a pub customer has been awarded €15,000 for her unfair constructive dismissal.
It follows an order by the Labour Court for Bridgehall Taverns Ltd, trading as The Uluru Bar and Restaurant, to pay Deirdre Walsh €15,000 over the matter which took place in September 2019.
The Uluru Bar and Restaurant in Waterford temporarily barred the customer from the premises arising from the lewd texts sent to Ms Walsh in March 2019.
However, in his findings, chair of the Labour Court, Kevin Foley stated the decision of the employer to restore to allow the customer in question to return without notice or engagement with Ms Walsh amounted to behaviour which was so unreasonable as to mean that she could not be expected to continue in her employment.
The case was before the Labour Court following an appeal by Ms Walsh against a Workplace Relations Commission (WRC) ruling which found against her complaint of constructive dismissal.
The content of the offensive text messages was not disclosed in the Labour Court ruling.
Mr Walsh, who had been employed at the pub since Halloween 2017, told the Labour Court that the texts made her very uncomfortable and caused her to have a severe panic attack.
Obscene communication
In the Labour Court's findings, Mr Foley concluded that there is no doubt that the text communication “was explicitly sexual in nature and was vile, humiliating, degrading and disgusting”.
Mr Foley stated Ms Walsh’s evidence “that such an explicit and obscene communication made her very uncomfortable was compelling and convincing”.
After receiving the lewd messages, Ms Walsh contacted her manager, who in turn reported the matter to the business’ managing director and the firm notified Gardaí, meeting with a garda member the following day.
Represented by Sean Ormonde & Co Solicitors, Ms Walsh said her bosses told her the customer had been barred, and she was content with this course of action.
However, Mr Foley stated the customer was permitted to return to the premises before the lapse of six months, without an apology being given to Ms Walsh or an undertaking being given as regards to future behaviour.
In evidence, Ms Walsh said that in a meeting with the managing director, who is also a co-owner of the business, on August 24th, 2019, the managing director stated many men thought like the male customer, adding he could not bar them all.
In evidence, the managing director said he could not recall having said such a thing and that he would be surprised if he had.
Cogent evidence
However, Mr Foley said he accepted the evidence of Ms Walsh in this respect in circumstances where she gave clear and cogent evidence on the matter.
Mr Foley stated that the court accepts, on the balance of probability, that no time limit was originally set down in terms of the exclusion of the offending customer and neither were conditions set out which, if met, would secure the termination of the customer’s exclusion.
Mr Foley added Ms Walsh's evidence that the managing director had trivialised her reaction to the return of the customer and made assertions as regards the likely thought processes of other male customers compounded the unreasonableness of the behaviour of the employer.
The employer contended that Ms Walsh’s failure to utilise her employer’s grievance procedure to raise any issue as regards her employment is fatal to her complaint.
However, in dismissing that defence to the complaint, Mr Foley stated that it is clear that the managing director engaged with Ms Walsh at all stages without encouraging her to utilise the grievance procedures in place.
Mr Foley said the court accepts the managing director made assertions to Ms Walsh as regards the likely thoughts of other men towards her, and that he stated to her that he did not accept that she was affected in the manner she contended by the return of the customer.
Mr Foley added that in these circumstances the court accepts the submission of Ms Walsh that she could not reasonably have been expected to engage the grievance procedures of her employer.
