Background to Complaint
This action highlights the classic elements for a claim for constructive dismissal, and also indicates that it is often insufficient for an employer to claim that had they become aware of any allegation of bullying or harassment in the workplace that they would have acted on it.
The very fact that such a hostile working environment was permitted to exist, would appear to make the employer culpable in the eyes of the Employment Appeals Tribunal (EAT).
The claimant began employment with the respondent company as kitchen porter on the 29th of January 2001.
It was alleged by the complainant that over a period of up to eight and a half months, he was subjected to bullying and harassment by the Head Chef.
For example, the Head Chef stated that the complainant ought not to go into the restaurant as he would put all the customers off their food.
In addition as the Head Chef spoke to the complainant he would continually poke him with a kitchen ladle.
The ongoing bullying and harassment came to a head when the complainant had taken Friday the 27th of June 2003 off from work in order to go to Galway to collect his brother, whose car had broken down.
The complainant had contacted his place of employment at 7.30a.m on Monday the 30th of June 2003, to inform his employer that he would not be into work that Monday either.
Subsequently, the complainant’s brother received a telephone call from the Head Chef who threatened “to break Kiernan’s neck” given that he was not at work that Monday.
On the complainant’s return to work on the Tuesday the 1st of July 2003, he was confronted by the Head Chef.
On receiving abusive and derogatory remarks about the fact that he was not at work the previous day, the complainant threatened to report the Head Chef to the owners of the restaurant.
Again the Head Chef became abusive and aggressive in his attitude to the Claimant.
Consequently, given the eight and a half months of sustained verbal, and at times, physical abuse, amounting to a sustained period of bullying and harassment, the Claimant walked out of his job.
It transpired on cross examination that the owner of the restaurant, Ms. Ann-Marie Nohl, visited the restaurant on Monday morning and on Fridays as she worked in the restaurant herself.
Ms. Nohl claimed that she had never received any complaint as regards the behaviour of the Head Chef, and only became aware of the claimant’s grievance when he came into the restaurant looking for his P45 on the 2nd of July 2003.
Ms. Nohl stated in evidence that had she been aware of the problem she would have dealt with it immediately.
On being informed of the claimant’s complaint, she confronted the Head Chef and told him she would not tolerate such treatment of any of her employees in that manner.
Ms. Nohl, though, came to the conclusion, in the absence of any form of investigation, that the Head Chef was not a bully, and felt that this was in fact substantiated on the basis that none of the other staff had complained to her.
Constructive Dismissal Claim Upheld
However, the EAT held the Claimant was constructively dismissed.
The Tribunal did accept evidence that the Claimant made no complaint to the owner, and if that had been the case Ms. Nohl would have dealt with the matter immediately.
Despite this, the allegations in relation to the Head Chef, remained uninvestigated and the grievance had not been properly addressed.
Therefore, it was not sufficient for an employer to claim that they were unaware of a hostile working environment, in which bullying and harassment is present.
As set out under the Employment Equality Act 1998, the employer is under a duty to act in a proactive manner to ensure that no such environment exists in the workplace.
Finally, it may be of interest, to note that in awarding compensation the Tribunal noted that since the 1st of July 2003 the Claimant had made inadequate efforts to obtain employment and consequently was only awarded €650 as compensation in this matter.
This underlines the point that the EAT expects employees to make all possible efforts to abate their loss subsequent to a dismissal, be it unfair or constructive, from their original place of employment.
Case: Gerard Kiernan v Ann-Marie Nohl, Jane Cathcart and O’Shea Espresso Bar, Employment Appeals Tribunal.
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