A female bar-staff worker was sexually harassed when a customer sent her “lewd text messages” that were called vile, degrading and offensive.
In making the finding, Workplace Relations Commission (WRC) Adjudicator, Enda Murphy has however dismissed the worker’s claim for constructive dismissal against her employer under the Unfair Dismissal Acts.
Mr Murphy also dismissed the worker’s claim for penalisation against her employer as a result of having made a complaint of sexual harassment in the workplace.
In evidence, the woman said that she attended the urban based pub and restaurant where she worked on a night-off on March 8th, 2019 and posed for a photo with a customer.
During the following night at work, the customer asked her to send the photo on to him and in response the customer replied “with a vile, humiliating, degrading and sexually explicit message via social media which made her feel very uncomfortable and caused her to have a severe panic attack”.
She stated that at 12.56am she received the vile and degrading text message from the customer which read “Hi if U would like ur p***y sucked and f****d???”.
The customer followed up with another text message asking “Are u wet???”.
The woman - who lives alone - replied by stating that these messages were very inappropriate and that the customer replied with a further message which stated: “Ok there U safe tonight”.
The woman said that she “began to feel degraded and uncomfortable in her own home”.
Course of action
The woman contacted her manager who in turn reported the matter to the business’s MD and the firm notified the Gardaí and met with a member of the Gardaí the following day.
The woman said that her bosses told her that the customer had been barred, and she was content with this course of action.
The worker continued to work at the bar/restaurant without difficulty until August 23rd, 2019 when she saw the customer who had sent her the text messages standing in the bar.
The worker submits that she was in shock and fear upon seeing him in the bar as she had understood that he was barred from the premises.
The man extended his hand towards her, as if in friendship, but she refused to take his hand and instead walked out of the premises.
The woman - represented by Neil Breheny, solicitor from Waterford based Sean Ormonde & Co. Solicitors - with permission, left work early later that day.
The MD told the hearing that the messages sent to the worker by the customer “were totally abhorrent and inappropriate” and that he acted on the matter as soon as it was reported to him.
The worker said that it was not possible for her to continue to work for the business if the MD was not prepared to take the appropriate steps to protect her by barring the customer from the premises indefinitely, and she resigned from her post on September 11th, 2019.
The firm was represented by Dan Walshe BL on the instructions of Waterford based firm, Nolan Farrell & Goff Solicitors.
In his findings, Mr Murphy found that the employer acted in an effective and reasonable manner immediately upon becoming aware of the incident of sexual harassment by conducting an investigation into the matter and putting remedial measures in place to prevent such conduct from reoccurring by barring the harasser from the premises.
Mr Murphy also found that the employer treated the worker’s complaint of sexual harassment with the utmost of seriousness from the outset and brought this matter to the attention of the Gardai and a meeting took place with a Garda.
Unwanted conduct
Mr Murphy stated that the employer informed the worker that the customer was being barred from the premises for a period of six months and would only be readmitted on the basis that he apologised to her and gave an assurance that the unwanted conduct would not be repeated.
The worker vehemently disputes the employer’s contention, and she had understood from the outset that this ban would be applied on a permanent basis.
Mr Murphy stated that he found that the account provided by the MD is likely to be the more accurate account of the nature of the discussions that took place between the parties on August 24th.
Mr Murphy found that the MD had already demonstrated that he was a reasonable and approachable employer and had genuine care and concern for the worker’s safety and wellbeing in the workplace by dealing with her initial complaint of sexual harassment in an expedient and effective manner.
In dismissing the worker’s claim for constructive dismissal, Mr Murphy found that the worker failed to exhaust the procedures available to her before taking the step to resign, thereby not providing the employer with an opportunity to address her grievances in a proper manner.
Mr Murphy found that the worker failed to establish that the employer’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract.
Mr Murphy stated that in the circumstances, he found that the worker resigned from her employment of her own volition and was not constructively dismissed.
