Complainant

Respondent

Anonymised Parties

Community Employment Supervisor

Addiction Services Company

Representatives

Seamus Collins BL instructed by

Seán Ormonde Solicitors

Hugh O’Flaherty BL instructed by

Sherwin O'Riordan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00052272-001

17/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00052819-001

14/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052819-002

14/09/2022

The complainant commenced employment with the respondent on 30 November 2016.  She was employed as a Community Employment (CE) Supervisor.  She initially worked Monday to Friday 09.00 to 17.00.  Her gross wage per week was €772.50.

The complainant alleges that difficulties arose in the employment relationship in or around 2017 in the form of sexual harassment.  This continued during her employment up to her resignation on 02 September 2022.  The complainant asserts that she was subjected to unwelcome and in appropriate comments and gestures of a sexual nature from her manager.  The complainant asserts that she reported these issues to her superiors at the respondent company, but her complaints were not addressed in any significant way.  The complainant submitted a complaint to the WRC on 17 August 2022 claiming she was discriminated against by the respondent on the ground of gender, in the form of sexual harassment.  The complainant accepts that the cognizable period for this claim runs from 18 February 2022 to 17 August 2022.

The respondent is a company limited by guarantee which operates a community addiction response programme providing services to people affected by substance misuse.  The programmes provided include prevention, rehabilitation, and family support.  The complainant was employed as a CE supervisor.   It is the respondent’s position that the complainant at no time during her employment raised any concerns with how she was treated and made no complaints of sexual harassment, victimisation, or any other type of harassment.  Following receipt of the complaint from the complainant’s solicitors the respondent took immediate steps to hold an independent investigation.  The complainant was invited to engage with the investigation, but she refused to do so.  It is the respondent’s position that it did not discriminate against the complainant.

The complainant commenced employment with the respondent on 30 November 2016.  She was employed as a CE Supervisor.  The complainant asserts that she was subjected to continuous unwelcome and inappropriate comments of a sexual nature from a manager of the respondent company, Mr K, from 2017 onwards.

The complainant alleges that the situation worsened over time and despite her repeated protests Mr K continued to make unwelcome comments and advances of a sexual nature to her.  The comments became so unacceptable that the complainant began to keep a note of the harassment she was suffering.

The complainant noted the following incidents of unacceptable behaviour by Mr K; 23 March 2021 – comments about the complainant’s legs, April to July 2021 comments about her walk, loss of weight, vulgar sexually suggestive gestures, comments about a night away with her partner, 20 August 2021 unwelcome sexual advances while exposing himself.  Within the cognisable period the complainant noted two incidents that she found to be unwelcome and unacceptable; 03 March 2022 comments about her appearance and 09 March 2022 comments about a cure of the complainant’s laryngitis and vulgar gestures.  The complainant regarded these events as unwelcome, inappropriate, utterly demeaning and humiliating treatment by her manager.

The complainant asserts that she was unsure how to proceed to deal with the unwelcome treatment from her manager.  The funding for the complainant’s role as CE Supervisor was provided by a Government Department.  On 05 April 20022 the complainant informed her liaison person in the Department about the unwelcome treatment she was experiencing.  It is accepted that the liaison person is not an employee of the respondent.

In or around October 2021 Mr K informed the complainant that he wanted to create a new role of Team Leader for which she would be suitable.  The complainant would report directly to Mr K in the new role.  He intended to source the necessary funding for this role.  The complainant refused such a role as taking that role would have meant working in close proximity to Mr K.

In February 2022 a new employee was appointed to the role of Team Leader.  The role that the complainant had refused.  On 02 June 2022 the complainant was subjected to bullying and harassment by the new Team Leader, Ms PC and Mr K at a meeting.  The complainant told Ms PC that she did not agree with changes being made to her programme by Mr K and Ms PC.  The complainant became so distressed at this meeting that she had to leave work and go home.

The complainant asserts that she was unsure how to proceed as she had not been provided with an employee handbook outlining any formal procedures.  She scheduled a meeting with the Chairperson of the Board.  The complainant states that she met the Chairperson, Mr D, on 11 June 2022 at his home.  The complainant states that she voiced her concerns about her ongoing experience of bullying and sexual harassment.  Nothing was done by the respondent to resolve the issues.  As no action was taken by the respondent the complainant wrote to Mr D on 29 July 2022 by e-mail.  The complainant believes that Mr D resigned his position as Chairperson of the Board because of the said e-mail.  As still no action was taken by the respondent the complainant submitted a complaint to the WRC on 17 August 2022.

The complainant’s solicitors wrote to Mr D as Chairperson of the respondent’s Board by e-mail of 24 August 2022.   The complainant claims that as a result of this letter her pay was cut.  The solicitors wrote again claiming this action was victimisation for having lodged a complaint with the WRC.  No response was received to these letters so the complainant’s solicitors wrote to the funding Government Department.  The Department replied stating that the complainant’s employment was with the respondent company rather than the Department and all correspondence should be sent to the respondent.  As no action had been taken by the respondent, the complainant resigned on 02 September 2022.  Her solicitors wrote to the respondent to inform it of her decision to resign.

Solicitors for the respondent replied to the complainant’s solicitors on 05 and 16 September 2022.  The complainant was invited to reconsider her resignation and to engage with an investigation in respect of her complaint of sexual harassment.  The complainant was hospitalised in September 2022 and was unfit to engage in the investigation.  The complainant asserts that the respondent was formally made aware of her complaints of sexual harassment on 05 April, 11 June and 29 July 2022 and it was unacceptable that the respondent had not addressed her complaints for months.

It is submitted that the foregoing forms the basis of a prima facie case of discrimination based on gender in the form of sexual harassment.

Legal Submission

The submission notes the discriminatory grounds set out in the Employment Equality Acts, 1998-2008 and the definition of harassment and sexual harassment.  It is submitted that the conduct the complainant suffered from Mr K amounted to sexual harassment as it was unwanted conduct relating to her gender that had the purpose or effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for her.

It is submitted that it is the effect of the conduct on the complainant that is relevant and that the intention of the harasser is not relevant.  This is reflected in the S.I. 208/2012 – Code of Practice (Harassment) which sets out that it is for each employee to decide what behaviour is unwelcome and from whom such behaviour is unwelcome.  Sheffield City Council v Norouzi [2011] IRLR 897 cited in support of this submission.

Section 14A of the Acts sets out that the conduct complained of must be of a sexual nature to amount to sexual harassment.  It is submitted that the complainant was subjected to both verbal harassment and physical gestures of a sexual nature on a repetitive basis.  A Worker v A Hotel [2010] ELR 72 and An Office Worker v A Security Company DEC-E2010-002 were cited as providing examples of conduct found to be unacceptable sexual harassment.  Odion v Techniform (Waterford) Ltd DEC-E2007-018 and A Worker v An Engineering Company DEC-E 2008-38 were cited as providing examples of conduct found to be verbal harassment.

It is submitted that the harassment and sexual harassment of the complainant occurred while in the course of her employment with the respondent.  Section 15 of the Acts renders an employer liable for acts by their employees done in the course of employment, whether done with the employer’s knowledge or consent or not.  The complainant contends that the harassment and sexual harassment she endured in the course of her employment may be treated as having been done by the respondent.

The complainant has to prove, on the balance of probabilities, that the conduct complained of did in fact occur.  The complainant asserts that she has discharged the burden of proof upon her.  The complainant contends that the respondent is vicariously liable for the unwanted and unacceptable conduct of Mr K.

It is submitted that the respondent cannot avail itself of the statutory defence provided in Section 14A (2) and 15(3) of the Acts as it did not take reasonably practicable steps to prevent the acts of sexual harassment, she suffered from Mr K.  No action was taken when the complainant raised the issues with Mr D, she did not receive training and was not provided with the anti-harassment policy.

The complainant seeks an award of compensation that is proportionate, effective and dissuasive in relation to her claims of harassment.  Citibank v Ntoko EED045 and Ryan v Socrates Workforce Solutions Ltd ADJ-00035281 cited in support of an award of compensation that goes beyond financial loss resulting from harassment.

The respondent is a company limited by guarantee which provides services to individuals, families and local communities affected by substance misuse through prevention, rehabilitation and family support programmes.  The complainant commenced employment with the respondent company on 30 November 2016.  She was employed as a CE Supervisor.  The complainant resigned on 02 September 2022.

The complainant’s line manager between 2016 and early 2022 was Mr K.  He was responsible for preparing regular supervision reports and appraisals.  These reports were shared with the complainant and she was invited to make comments before such reports were finalised.  Although the complainant was invited to make comments during appraisals at no time did she raise concerns about how she was treated or make complaints of sexual harassment, victimisation or any other type of harassment.

  In February 2022 the respondent employed a new Team Leader, Ms PC.  Some of the duties previously undertaken by Mr K transferred to Ms PC, including the complainant’s reporting line.  Changes to the complainant’s work practices were proposed by Mr K and Ms C.  The changes became contentious as the complainant did not accept that she should make the changes to her programme, work practices or reporting line.  Tensions arose between the complainant, Mr K and Ms PC at a meeting on 02 June 2022 and the complainant stated was not prepared to facilitate the required changes to her programme.

In July 2022 further meetings were held with the complainant but they were not productive.  Ms PC decided that the issues would be taken up after the complainant returned from holiday at the start of August 2022.  On 28 July 2022 the complainant submitted a certificate from her doctor stating that she was unfit for work from 02 to 23 August 2022.  Further medical certificates were submitted on 17 and 29 August 2022 extending the period of sick leave to 07 September 2022.

On 05 September 2022 an envelope address to the former Chairperson of the Board, Mr D, was delivered to the respondent’s office.  Mr D had in fact resigned as Chairperson of the Board, effective 01 August 2022.  In those circumstances the Manager, Mr K opened the post addressed to Mr D.  The envelope contained three letters, dated 24, 25 August and 02 September 2022 from a firm of solicitors acting on behalf of the complainant.  The letter dated 24 August 2022 set out the allegations of harassment and sexual harassment.  This was the first occasion that the respondent was informed of any complaint by or on behalf of the complainant. 

Mr K contacted the new Chairperson of the Board, Mr P, who instructed him to contact the respondent’s solicitors and the other members of the Board. 

The Chair and Secretary of the Board held an initial meeting with Mr K on 09 September 2022.  The complainant’s allegations were put to Mr K, he strongly refuted all the allegations.

The respondent appointed an independent external company to investigate the complaints.  The terms of reference were sent to the complainant’s solicitors and she was invited to engage with the investigation.  The complainant was in hospital for a period in September 2022 and unavailable.  By letter dated 19 October 2022 the complainant’s solicitors informed the respondent’s solicitors that the complainant would not engage with the investigation.  The investigation report was finalised on 21 November 2022 and approved by the Board.  The finding of the investigation was that the allegations against Mr K were not well founded. 

The respondent received notice from the WRC on 17 October 2022 of the complaints made by the complainant. 

Sexual Harassment

The complainant made serious allegations against Mr K.  However, only two of the complaints come within the six months prior to the submission of the complaint form to the WRC.  The two complaints within the six-month cognisable period relate to events alleged to have occurred on 03 March and 09 March 2022.  All other complaints relate to events alleged to have occurred in 2021 are outside the jurisdiction of the WRC.  However, Mr K denies all the allegations made by the complainant.

The complainant states in her submission that she reported her allegations of sexual harassment “to her superiors” but she had not identified who these people are.

The complainant states in her submission that she was left with no alternative but to schedule a meeting with the then Chairperson of the Board, Mr D and that meeting took place on 11 June 2022 at his home. It is Mr D’s position that no such meeting took place at his home on that date or any other date. 

The complainant claims that she sent an e-mail to Mr D on 29 July 2022.  It is claimed that the respondent’s failure to deal with this complaint makes it vicariously liable for its employee. However, the first time the respondent received the said e-mail was when it was sent as an attachment to a letter dated 28 October 2022 from the complainant’s solicitors.  The first time the respondent received notice of a complaint was on 05 September 2022.

It is the respondent’s position that there is no evidence to support the allegations made by the complainant.

Grievance Procedure

It is the respondent’s position that a prevailing aspect of employment law is that there is an onus on an employee to invoke a grievance procedure and allow the employer an opportunity to address the complaints.  In this case the complainant did not give the respondent any opportunity to address her complaints.  The complaints, in the form of letters from the complainant’s solicitors, were received by the respondent on 05 September 2022.  The complainant had already submitted a complaint form to the WRC on 17 August 2022.

An e-mail to Mr D, dated 29 July 2022, was not received by the respondent until 28 October 2022.  However, it seems that the complainant did not take any steps to follow up on this e-mail when she did not receive a reply.  It is the respondent’s position that it is incumbent on a complainant to invoke any internal remedies before resigning from their employment.  The complainant did not invoke the internal grievance procedure and did not exhaust the internal remedies available to her.  The decision in Conway v Ulster Bank UDA474/1981 and Harrold v St Michael’s House UD/1123/2004 are cited in support of this submission.

Once the respondent was made aware of the complainant’s allegation on 05 September 2022 it moved quickly to establish an independent investigation.  The complainant refused to engage with the independent investigation.

The respondent submits that the complainant is not entitled to the remedies sought.

CA-00052272-01

Complaint submitted pursuant to section 77 of the Employment Equality Act, 1998

The complainant was employed as a CE Supervisor with the respondent.  She commenced employment on 30 November 2016.  The complainant has referred a matter for adjudication as provided for under section 77 of the 1998 Act (as amended).  In particular, the complainant (as set out in her WRC complaint form dated 17 August 2022) seeks redress from the respondent in circumstances where she claims her employer behaved unlawfully and discriminated against her in the course of her employment by treating her less favourably that another person has or would have been treated in a comparable situation on the grounds of gender.

In addition, the complainant makes complaint that she was harassed, sexually harassed and victimised in her workplace.  Section 14A of the Act deals with Harassment and Sexual Harassment.

The Act provides:

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds")

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), …

14A.— (1) For the purposes of this Act, where—

(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) … (6)

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Burden of Proof

The Act places the burden of establishing the primary facts on the complainant.  Section 85A of the Acts transposes Article 19(1) of Directive 2006/54, the Recase Directive, into Irish Law.  The section shifts the burden of proof to the respondent where facts are established by a complainant from which it may be presumed that there has been discrimination in relation to them.

The section provides as follows:

85A.— (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) … (3)

(4) In this section "discrimination" includes—

(a) …(b)

(c) harassment or sexual harassment

The Labour Court in Southern Health Board v Mitchell [2001] E.L.R. 201 set out what is required of a complainant in a complaint of unlawful discrimination.  Although this decision predates section 85 A it is the leading decision on the shifting of the burden of proof.  The Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination is made out:

 “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

 It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Summary of the Complainant’s evidence

The complainant described her role since she commenced employment in 2016.  She stated that she had a positive working relationship with other workers, specifically with Ms D.  Her reporting line was to an individual in a Government Department which funded the programme she worked on and to Mr K the manager of the respondent company.  It was the complainant’s position that she had been subjected to inappropriate and unwanted remarks from Mr K, since 2017.  However, she had not made any complaint to either the manager or any member of the Board.  The complainant stated that the then Chairperson of the Board, a woman since deceased, had a close relationship with the Manager and she felt she could not approach her.

The complainant stated that in 2019 she suffered with a heart condition and spent six weeks in hospital.  She needed to be careful to avoid stressful situations due to her medical condition which is ongoing.

The complainant described a number of events in March, June, July and August 2021 that she found unwelcome and upsetting.  The complainant alleged that Mr K made comments to her about her physical appearance, her walk and her dress.  The complainant stated that following a lunchtime walk with a colleague, Ms D, she told her about comments made to her by Mr K about how she walked.  The complainant also stated that Mr K had made a remark to her about seeing her on CCTV that he could access from his mobile phone. 

The complainant alleged that in August 2021 she was in her office when Mr K came into the office, made inappropriate suggestions, gestures and exposed himself to her.  She told him to get out and he left.  She was then very upset and started crying.  She regarded this encounter as the most serious of all.  She did not report this incident to anyone.  However, she stated she had contacted an outside organisation for help and counselling.  She subsequently did a course with that organisation.

The complainant stated that she wanted to make herself invisible, she changed the type of clothes she wore to work, preferring polo neck tops and thick tights.  The complainant stated that she told Mr K to stop on many occasions but he would just laugh and walk away.  She stated that out of fear she did not confront Mr K.  During her employment the complainant had regular supervision meetings with Mr K, approximately every 6 weeks, and while there were notes of these meetings, she did not mention these matters as she thought she could have lost her job.

The complainant stated that in October 2021 she was informed by Mr K that a new position of Team Leader was going to the Board for approval.  She did not want to accept that position as if she had it was her view that Mr K would micromanage her life in that post.

The complainant described two encounters with Mr K that took place on 03 and 09 March 2022.  In each case she described Mr K making offensive and unacceptable remarks to her which were upsetting.

The complainant decided to make a complaint about Mr K and she e-mailed her liaison person at the Government Department on 05 April 2022.  She did not receive a reply.

A new employee, Ms PC, was appointed to the position of Team Leader in February 2022.  The complainant was told she was to be supervised by Ms PC.  The programme the complainant was responsible for was reviewed and certain changes were proposed by Mr K and Ms PC.  Changes that the complainant did not agree with and about which she felt she was not properly consulted.  On 02 June 2022 the complainant met with Mr K and Ms PC to discuss the proposed changes.  The complainant became upset and left the meeting.

The complainant stated that she decided to contact the then Chairperson of the Board, Mr D about her encounters with Mr K.  She stated that she met Mr D at his home on 11June 2022 about 3pm.  She had been to his home before because she was involved in another organisation with Mr D’s partner and was a member of the Board of that organisation.  The complainant said she had coffee and biscuits with Mr D and told him about her incidents with Mr K.  She stated that Mr D was horrified and said that things would change.  He was to examine how the company was functioning and look at all the staff policies, including CCTV and employment contracts.   She received a copy of her contract of employment from Mr D on 30 June 2022 by e-mail.  The complainant said she felt positive leaving that meeting on 11 June 2022.

The complainant stated that there was no change after that meeting.  She met with Mr D again on 20 June 2022 when he was in the office for a Health and Safety audit.  They met informally in the kitchen of the premises where they discussed work matters but there was no discussion about sexual harassment.  The complainant stated that Mr K was not present that day.  The only change that took place was that Mr D arranged for the access to the internal CCTV to be removed from Mr K’s phone.

The complainant stated that no action was taken concerning her complaint of sexual harassment between 11 June 2022 and her going on leave on 22 July 2022.  The complainant stated that she was upset that no action had been taken on her complaint so she took legal advice.  She stated that a solicitor wrote a complaint and she sent it to Mr D by email on 29 July 2022.  She stated that she knew Mr D had received the email because his partner was not happy that she had sent that e-mail.  The complainant stated that because of her e-mail Mr D had resigned as Chairperson of the Board on 01 August 2022.  The complainant stated that subsequently she was also removed from her Board position with Mr D’s partner’s organisation.

The complainant did not receive a reply to her e-mail of 29 July 2022.  She was medically certified as unfit for work due to stress and did not return to work from her leave.  She resigned from her employment on 02 September 2022.

The complainant confirmed that the respondent’s policy on Dignity in the Workplace was available to staff but she did not recall receiving training.  She confirmed that the respondent had invited her to be involved in an investigation and initially she thought she was being taken seriously but she was unwell and could not participate.  She was in hospital for a week in August 2022.

The complainant said she felt let down by the respondent because she had heard nothing back in relation to her complaint in June 2022, she felt disappointed.

Cross Examination

In reply to a question the complainant confirmed that she went on annual leave on 22 July 2022 and then went on sick leave.  She stated she had sent an e-mail complaint to Mr D on 29 July 2022 but did not receive a reply.  She confirmed that she did not send any follow-up e-mail after 29 July 2022.

Counsel for the respondent noted that correspondence dated 24 and 25 August 2022 to the respondent had been sent to an incorrect e-mail address and that the respondent did not received notice of the complaints until 05 September 2022.  In reply to a question about her contract of employment the complainant stated that she was not aware her contract was with the respondent as she reported to Mr G in a Government Department. 

The complainant confirmed that she had not made a complaint to the respondent before June 2022 but she maintained she had been subject to sexual harassment since 2017.

In reply to questions the complainant confirmed that she had been invited to engage in the investigation of her complaint. She stated that nothing was done between 11 June and 29 July 2022 in relation to her complaint so she was happy to hear her complaint was now being taken seriously.  However, she was in hospital in August 2022 for seven days and so could not engage.  Also, in September 2022 when asked again she was too unwell to cooperate with the investigation.

The complainant confirmed that the respondent had asked her to reconsider her resignation.  The complainant stated that she had told Mr D on 11 June 2022 that she would resign if nothing was done about her complaint.  The complainant stated that she would not reconsider her resignation if Mr K was still there.  The complainant confirmed that she refused to reconsider her decision to resign because nothing was done about her complaint between 11 June and 29 July 2022. 

In reply to questions about the grievance procedure the complainant accepted that the Employee Handbook was available, it was in a red and white folder and she knew it was there but, she said there was no point in a policy If she could not use it.  She stated that she was not aware that the grievance procedure was contained in her contract that she had signed in 2016.  The complainant stated that she could not complain to Mr K or the previous Chairperson of the Board because there was a personal relationship between them.  Mr D was the first person that she thought would have the strength to take on Mr K, also he was a male.

The complainant stated that her reporting line was to Mr G in a Government Department, she did not accept she reported to Mr K and she said she could not remember being supervised by Ms PC.

It was put to the complainant that Mr D would give evidence that he did not meet with her on 11 June 2022 to which she replied that she was telling the truth, they met at his house.  The complainant also stated that the issue of the CCTV cameras was discussed on 11 June 2022.  The complainant acknowledged that when she met Mr D on 20 June 2022 there were two Health & Safety officers on site.  She also acknowledged that the discussion with Mr D on that occasion was not about sexual harassment but rather about work issues.

In respect of the e-mail of 29 July 2022 the complainant said she did not get a receipt of e-mail reply. She stated that she knew Mr D received the e-mail because his wife rang her.  The complainant acknowledged that she did not send any follow-up to the e-mail between 29 July 2022 and the 24 August 2022, when her solicitors sent a letter of complaint by e-mail.  She said she didn’t know why she didn’t send a follow-up e-mail.

It was put to the complainant that Mr K would give evidence and that he would deny all the allegations made against him.  The complainant stated that her complaints were true.  The complainant stated that she did not make a complaint at an earlier time as she felt there was nobody to whom she could complain.  She had the names of three Board members but she did not contact any of them about her complaints.

When asked about regularly having lunch together with Mr K and Ms D she said that happened maybe once a week.  The complainant stated that there were friendly text messages exchanged with Mr K but that was not on a regular basis.  The complainant stated that Mr K had brought her to hospital when she had collapsed at work.

In reply to questions about her health and work the complainant replied that she had a heart condition and had suffered with stress.  She was in hospital at times for both.  She confirmed that she had personal relationship difficulties and she was stressed by that but it was manageable, even though she was not sleeping properly.

The complainant was asked what the response she expected from the organisation after 05 September 2022.  She replied that Mr K should have been suspended pending investigation, she said he is not the person to manage the organisation.  The new job he proposed was just a ruse to get close to her.

It was put to the complainant that the new role came about because Mr K had himself been ill and after his second heart attack an external consultant recommended that he needed support and a new role was proposed.  The complainant said she did not accept the explanation for how the new role came about. 

The complainant stated that she was not happy about changes to the structure of her programme and this was discussed with Mr K and Ms PC the day before she went on holidays.  Ms PC had said it would be dealt with after her holidays.  It was put to the complainant that all the issues were raised because of the new role and the resulting changes.  The complainant replied that was untrue.

Re-examination

In reply to a question about the proposed new role the complainant stated that in her role she reported to Mr G in a Government Department and Mr K whereas in the new role she would only report to Mr K.  She could not accept the new role as she would have been micromanaged by Mr K.

Asked about the e-mail she sent to Mr D on 29 July 2022 she stated she used the address that he had sent had used to send her a copy of her contract on 30 June 2022.  She stated that she knew that Mr D had received the e-mail because his wife had phoned her and was not happy.

Summary of the evidence of Ms A – former employee

Ms A stated that she worked with the respondent between December 2020 and July 2021.  First, on work experience from December 2020 to February 2021 and then as a project worker from February to July 2021, when she resigned.  Her supervisor was the complainant.

Ms A stated that she had little interaction with Mr K.  She was informed that she was not to sit in the office with the complainant.  She said she thought Mr K was not approachable so she went to the complainant about any issue or query.  She described Mr K as having aggressive mannerisms, for example a usual reply was to say “deal with it”.  She stated that on two occasions she heard Mr K comment on the complainant’s dress, once telling her to “fix that top” and on another occasion commenting negatively about her appearance in jeans.   

Ms A described the work environment as toxic and not a nice experience. However, the complainant was her supervisor and she learned a lot from her. She was a kind and supportive person.

In cross examination Ms A was asked when she was asked to give evidence and she replied last week.

Summary of the evidence of Mr D – Chairperson of the Board May – 01 August 2022.

Mr D stated that he was a member of the Board from 2021 to 01 August 2022.  The previous Chairperson, a woman now deceased, had asked him to take the position of Chairperson at the AGM and he agreed.  He described Mr K and the previous Chairperson as being of similar temperaments, they would sort things, but he didn’t see any special relationship between them.

Asked about a meeting with the complainant on 11 June 2022 at his home, Mr D said that he never had a meeting with the complainant at his home.  He said the complainant was in and out of his house regularly to meet with his partner as they both were involved in another organisation.  If he was in the house when the complainant was there to meet with his partner, he would have a casual conversation.  He stated that he did not have a meeting arranged with the complainant on 11 June 2022 and she did not discuss any complaint of sexual harassment with him.  He stated that the first time he became aware of the complainant’s complaints was when Mr P, the next Chairperson of the Board, contacted him after 05 September 2022.

Mr D recounted meeting the complainant on 20 June 2022.  He was at the respondent’s premises to attend at a Health & Safety audit survey.  Mr D met the complainant in the kitchen and they spent 30 minutes together.  Mr D stated that the complainant was unhappy about changes in her job and the new reporting structure.  Mr D stated that the complainant did not discuss any complaint of sexual harassment, all the issues discussed were related to her work and changes in her work.  Mr D said he told the complainant to address her issues to her manager and if they were not resolved then to address them to the Board.  Mr D stated that they were in the kitchen alone during the discussion but there were other staff around the premises.

Regarding Mr D’s e-mail address, he stated that when first appointed as Chairperson of the Board, he was using a personal business .ie address.  He had asked Mr K to set up a new separate Chair@ address and this was done in mid-June 2022.  That was the e-mail address used for all Board business from then onwards.  Once it had been set up, he had transferred all respondent business to the new Chair@ e-mail and put an auto-reply on the old e-mail to say that was closed and no longer in use.

Mr D said he did not receive an e-mail from the complainant on 29 July 2022.  He first saw that e-mail one week before the hearing.  Mr D said that if he had received the e-mail on 29 July 2022, he would have contacted the complainant and called a meeting of all members of the Board.

Cross Examination

Asked about the former Chairperson and her relationship with Mr K, Mr D replied that they were both strong personalities. Mr K he described as strong and with a big voice, he might come across as less than empathetic.  However, Mr K was a good friend to the former Chairperson, who was ill for a period before her death.

In reply to questions about meeting with the complainant at his home on 11 June 2022 Mr D stated that there was no meeting. He said the complainant may have been at his house on 10/11 or 12 June 2022, as she was often in and out to meet his partner.  However, there was no meeting or discussion about the complainant’s complaints on any date.  He stated that if something like that had come up in conversation, he would have taken action.  It was put to Mr D that the complainant had described the meeting in detail, even to having coffee and the type of biscuits and that he was shocked at the complaints.  Mr D replied that no sexual harassment issues were discussed with him by the complainant and all the details of such a meeting were fabricated by the complainant.

In reply to questions about meeting the complainant on 20 June 2022, Mr D stated that the only issues discussed were about the complainant’s job and the changes that were being implemented.  He said no other issues were discussed on that day.  Mr D stated that the complainant had not disclosed any sexual harassment issues to him at any time.

In reply to questions about the CCTV on the premises, Mr D confirmed that the complainant had brought an issue to his attention about CCTV being accessed from outside the premises by Mr K.  He could not recall when that was but when he became aware of it, he was concerned about GDPR issues and arranged the CCTV only to be available for viewing on the premises.

Concerning his use of a personal business e-mail Mr D stated that he had used it up to the first or second week in July 2022.  By then Mr K had set up the new Chair@ email and he switched to using that.  He stated he had sent the complainant a copy of her contract of employment from the personal business e-mail on 30 June 2022 because he had received the documents on that e-mail from Mr K and he had simply forwarded the documents to the complainant.  He again stated that if he had received the 29 July 2022 e-mail, he would have taken action.  Mr D said his partner did not have access to his e-mail and he did not have access to her e-mail and they did not share passwords.  Mr D stated that he put a re-direct message on the personal business e-mail to the new Chair@ e-mail.  It was conceivable that the personal business email was still active in July but he no longer used that.

About his reason for resigning the post of Chairperson of the Board of the respondent, Mr D stated that by July 2022 he was thinking about the role, he was busy and there was more work involved than he initially thought.  He had an eye problem and was due to get married in September, he was getting stressed and that had affected his eye.  They had a Board meeting at the end of July, Mr K was on leave but was due back on 02 August 2022.  He decided to resign and sent his notice of resignation dated 01 August 2022, effective that day.  His decision to resign had nothing to do with the complainant’s complaints as he was not aware of them until contacted by Mr P, after 05 September 2022.

Re-examination

Mr D stated that the CCTV policy needed to be updated to take account of GDPR requirements.  Access to view the CCTV was changed to restrict it to the premises and not remotely by phone.  Mr D confirmed that the complainant had brought this issue to his attention but he could not recall when.  He repeated that the complainant had never had a discussion with him about sexual harassment claims.

Summary of the evidence of Mr P – Chairperson of the Board August 2022/24.

Mr P stated that he was a member of the Board of the respondent for three and a half to four years.  He became Chairperson at the end of August 2022, after Mr D had resigned.  He was a member of the Board and had worked on the Board with the Chairperson who was in post before Mr D.  He described her as a consummate professional.

Mr P stated that he agreed to take over the role of Chairperson in August 2022.  Mr D had resigned as he was busy and had underestimated the amount of work involved.  The Chairperson before Mr D had been ill and there was more work to be done than expected.

Mr P stated that the first he knew of the complainant’s complaints was on 05 September 2022.  Documents addressed to Mr D, as Chairperson, had arrive in the post.  Mr K opened post addressed to the Chairperson and when he opened the envelope, containing three letters, he rang Mr P immediately.  The letters contained allegations and the complainant’s resignation.  Mr P instructed Mr K to send the letters to the respondent’s solicitors and the other members of the Board.  Mr P clarified that the solicitors were acting for the respondent company and not for Mr K.

Mr P stated that Mr K had to be given an opportunity to respond to these allegations.  He and the Secretary of the Board interviewed Mr K via Zoom on 09 September 2022.  Mr K was asked to take leave for 2 or 3 weeks and then to work from home.  This was to give the Board time to investigate the complaints. Mr K was robust in his rejection of all the allegations, it was a difficult meeting to have.   Mr P confirmed that the minutes of the meeting provided with the submission were accurate, apart from some small typos.

Mr P stated that the respondent had a duty to all parties to deal with the complaints.  An independent investigation was set up however the complainant did not get involved in the investigation.  The investigation report was finalised and presented to the Board on 21 November 2022.  The findings were (1) the allegations were not well founded and (2) the claim in respect of no payment after sick leave entitlement was exhausted was not victimisation.  The Board accepted the findings of the investigation.

Regarding the creation of a new position of team leader Mr P stated that the Board had observed that the manager Mr K had no deputy to manage in his absence.   Mr K had been on sick leave and it was recognised that he needed support, ideally a sub or deputy.  The new position was approved by the Board.  At the time of approval, it was thought that the complainant, with some mentoring, might be suitable to step up to such a position as she had good experience.

Cross examination

Replying to questions about the investigation Mr P clarified his role as Chairperson of the Board was first to hold a formal meeting with Mr K on 09 September 2022, along with the Secretary to the Board.  After that the decision was made by the Board to set up an independent investigation of the complaints.  The terms of reference for the investigation were drawn up by the investigators, reviewed by the Board and sent to the complainant’s solicitors for input.  The investigation did not deal with a meeting alleged to have taken place on 11 June 2022 because there is no reference to such a meeting in the letter of 24 August 2022 from the complainant’s solicitors.

Re-examination

Regarding the alleged meeting of 11 June 2022 Mr P stated that the first time he heard of such meeting was at the hearing.

Second Day Witnesses

Summary of the evidence of Ms C – former employee of the respondent.

Ms C stated that she had been employed as a youth worker from November 2015 to June 2021.  She worked mainly with youths 16-25 years supporting programmes on drug addiction and prevention issues.  Ms C reported to the Manager, Mr K.

Replying to questions about any inappropriate comments or acts by Mr K towards her, Ms C stated that once or twice he had indicated that her top was inappropriate for work.  This had been when she was going out after work and Mr K was very clear about boundary issues in the workplace.  Ms C acknowledged the top was not usual workwear.  She stated the Mr K’s comments were not inappropriate or personal.  It was a work boundary issue.

About her relationship with the complainant, Ms C stated that she and the complainant were pals.  They discussed personal issues at times.  The complainant has health issues and they were discussed.  Ms C stated that while the complainant had personal relationship issues with her husband these were not discussed in detail.  Ms C stated that the complainant did not discuss any serious issues or complaints about Mr K with her.

Cross examination

Replying to question about her relationship with the complainant, Ms C stated that they had worked together for 4 years and got on well with her.  Ms C confirmed that she had not applied for a position with the complainant’s programme even though the hours of work might have suited her.  Ms C stated that she got on well with the complainant, they often worked with the same clients.

Asked if she was aware of the allegations the complainant had made, Ms C stated that she was.  Asked if the complainant had made up the allegations, she replied yes, the allegations were made up by the complainant, after she, Ms C, had left employment, she assumed.  The complainant had not discussed the allegations with her.

Summary of the evidence of Ms D - employee of the respondent.

Ms D stated that she worked as a support worker with the complainant, they shared an office together.  She thought she had a good relationship with the complainant.  Ms D stated that she was part of a ‘lunch club’ that included the complainant and Mr K. 

Ms D stated that the complainant did discuss some personal problems with her over time.  The complainant was not a talker but she was struggling with some past trauma and was going through a tough time with her marriage break up.  Ms D had advised her to get professional help.  The complainant told her she was seeking counselling.

Regarding the allegations against Mr K, Ms D stated that the complainant had absolutely not raised any inappropriate act by Mr K with her.  Ms D stated that she did not witness Mr K acting inappropriately at any time, he was conscious of appropriate behaviour and acting appropriately in the workplace.

Regarding the respondent’s policies about dignity at work, grievances etc., Ms D stated that they were available the were in a red folder in a glass case.  She had to read the policies before she started working at the respondent.

Cross examination

In reply to question about Mr K making inappropriate comments, Ms D said, absolutely not, he did not make inappropriate comments.

Regarding Mr K’s management style, Ms D stated that his management style was not liked by all staff but she never witnessed him being aggressive to any member of staff.  Asked about a former employee, Ms A, the witness replied that Mr K had asked Ms A to come out of the complainant’s office and work at her assigned place.  Ms A did not like that.

Ms D stated that she regarded the complainant as a colleague, she thought of her as a good colleague.   Ms D stated that she was horrified at the allegations made about Mr K.  Ms D noted that the complainant’s role was changing and she did not take that well, things did not go her way.

Re-examination

Regarding the allegations made by the complainant about Mr K, Ms D stated that she believed they were made up.  The alleged comment about the complainant’s legs was made up.  The complainant had not discussed that with her as she had claimed.

Replying to a question from the AO about Mr K’s management style, Ms D clarified her earlier comments.  Mr K had assigned the new team leader, Ms PC, to update job descriptions and some people did not like that.  He was not aggressive, he was managing, that was his job.

Ms D stated that she had known Mr K all her life, some might regard him as pernickety but, in her opinion, he was just doing his job.  She stated that although she knew him so long, she would not lie for him.  He was just doing his job.

Summary of the evidence of Ms PC – Team Leader

Ms PC stated that she had commenced work with the respondent as a sessional counsellor.  A year later she was appointed as Team Leader.  The appointment was part of a change in the structure of the organisation.  Ms PC stated that the complainant seemed unhappy with the changes, she had not told her that she was unhappy but, that was the impression she got.  The complainant was not co-operative with Ms PC, particularly in sharing documents with her that she needed.  Mr K wanted Ms PC to be familiar with the funding arrangements and documents required by the funding Government Department.

Regarding her observations of the relationship between the complainant and Mr K, Ms PC stated that she did not see any difficulty between them.  The only exception was when she reported to Mr K that she was having difficulty getting documents from the complainant.  A meeting was arranged between the complainant, Mr K and herself, the day before the complainant went on annual leave.  The purpose of the meeting was to try to find a way for them to work together.  The complainant did not engage in the meeting, just giving yes or no answers to questions.  Ms PC said the complainant appeared upset and she thought that it was because she, Ms PC, had been appointed to a job that had been offered to the complainant.

Ms PC stated that the complainant had not said anything to her about Mr K acting inappropriately or mentioned sexual harassment.  She said if such actions had been reported they would not have been covered up.  Ms PC said that the complainant has discussed some personal matters with her but not anything about Mr K.  The complainant did not report any issue about Mr K to her at any time.

Regarding the respondent’s policies, Ms PC stated that she was given the policies to go through when she first started employment.  The policies were on computer and also in a folder at the reception area.

Cross examination

In reply to questions about the meeting she had referred to with Mr K and the complainant, Ms PC said there was an unhappy energy about the meeting.  She wanted to work with the complainant, but she thought the complainant had a problem with her.  Ms PC noticed that the complainant was somewhat distressed after the meeting and she suggested that she go home.  It was a Friday and the complainant was going on leave that day.

Re-examination

Ms PC stated that she did not see Mr K act inappropriately towards the complainant at any time.

Summary of the evidence of Mr K – Manager

Mr K described his role with the respondent, details of his family life and background.  He commenced employment with the respondent in 2013 and works as Manager of the centre where addiction and prevention drug services are provided to the local community.

Mr K stated that he had a good relationship with the complainant.  They were both part of the lunch club and regularly had lunch together at work.

Mr K described the background to the introduction of the new Team Leader role.  He had to take sick leave as he had had two heart attacks and surgery on his back.  He was the Manager but did not have a deputy to support him in that role.  The Board, on the advice of a consultant, agreed he needed support in his role and approved the creation of a new position.  The complainant would have been a suitable candidate for that role if she met certain standards.   She would have had to do some extra work to meet those standards.  She was not offered the job but offered the opportunity to be a candidate. 

Mr K stated that when Ms PC was appointed the complainant was not that cooperative with her.  There were difficulties about sharing documents related to the funding of programmes.  Ms PC as the Team Leader needed to have access and know the details of the funding arrangements with the Government Department.  To address that issue a meeting took place between the complainant, Ms PC and Mr K before the complainant went on leave. The meeting was not productive and it was agreed to adjourn until the complainant returned from leave.

Concerning the allegations made by the complainant, Mr K stated that they were complete lies, the acts alleged by the complainant never happened.  Mr K said he was sick about what he was accused of, he is the father of daughters and these accusations were lies.

Mr K stated the there is a strict dress code in work as the staff work with vulnerable adults with addiction issues.  It is required that staff wear clothes appropriate to the work setting.  Therefore, at times he did have to tell staff about what was appropriate to keep proper boundaries with clients.

Mr K described how he became aware of the allegations against him.  On 05 September 2022 a brown envelope arrived in the post address to the former Chairperson, Mr D.  He opened the envelope and when he read the letter from the complainant’s solicitors, he immediately contacted the then Chairperson, Mr P.  He followed the instruction he received from Mr P.  He contacted the respondent’s solicitors and sent copies of the letters to Mr P and to the solicitors.

Mr K stated that he was asked to take leave for 2 or 3 weeks and then worked from home until the investigation of the allegations was completed.

Mr K stated that he was not aware of any other complaints against him.  He was not aware of Ms A hearing him comment about the complainant’s clothes, or any issue about his comments about appropriate dress code.

Mr K confirmed there were CCTV cameras in the main part of the building, but not in the individual offices.  He had had access to the system from his laptop and phone but when Mr D changed the policy, for GDPR reasons, he had been asked to remove that access, which he did.  Mr K stated that the change of policy was a data protection issue not because he was observing staff.

Concerning his relationship with the former Chairperson of the Board, Mr K said he did not have a special relationship with her.  He did get on well with her, she was a good Chairperson and he worked well with her.  He did support her when she was diagnosed with cancer before her death.  Mr K described her as a very approachable person.

Cross examination

In reply to questions about previous bullying complaints, Mr K stated that he could not tell how many complainants might have been raised.  He asked people to do their job and sometimes they were not happy about that.

Asked if he had been sent on a course because of bullying, Mr K replied no, he was not sent on a course.  He had asked to get people management training and he did attend a course.

Concerning the CCTV cameras, Mr K stated that he was not asked to remove access to the cameras from his phone and laptop because of a complainant.  He was asked to remove access for data protection reasons and the updated GDPR policy.

In reply to questions about the dress code and comments to the complainant, Mr K stated that he had no specific recall of addressing the complainant about the code, but he was sure he did at some point.  Regarding a specific allegation about comments on the top the complainant was wearing, Mr K stated that it was a fabrication.

In reply to a question about the new role of Team Leader, Mr K stated that the complainant was considered to be a suitable candidate, she had been sent for management training but she didn’t step up.

Re-examination

Concerning the respondents staff policies, Mr K stated that new staff were required to read the policies which were available in soft and hard copy.

In reply to a question about previous complaints about him, Mr K stated that there had been two complaints to the WRC which had not been upheld.  He had requested management training and had attended a management / leadership training course.

Asked about the allegations made by the complainant in this case, Mr K stated that he rejected all the allegations.

Findings

The complainant has submitted a complaint against the respondent, her employer, alleging that she was discriminated against by her employer on the grounds of gender, sexual harassment and victimisation.

Section 85A of the Act requires a complainant to establish facts from which it may be presumed, on the balance of probabilities, that an act of discrimination has occurred in relation to the complainant before the burden of proof moves to the respondent.

Gender

Section 6 of the Act deals with the discrimination as follows - (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds"

 Section 6(2)- As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

The complainant did not present evidence to support a complaint that she was treated less favourably by the respondent to the way a man was or would have been treated in a comparable situation.  I find the complainant has not established facts from which it may be presumed she was treated less favourably than another colleague who was a man, was or would have been treated.  I find the complainant was not discriminated against by the respondent on the gender ground and consequently the burden of proof does not shift to the respondent.

Sexual Harassment

Section 14A of the Act provides that where an employee is harassed or sexually harassed either at a place where the employee is employed or otherwise in the course of his or her employment the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.  The complainant alleges that she was harassed and sexually harassed at her place of employment by her manager. 

On the complaint form submitted to the WRC on 17 August 2022, it is stated that the complainant had been “struggling for the last two years or so to cope with unwelcome, inappropriate and utterly demeaning and humiliating treatment” by Mr K.  In her oral evidence the complainant stated that the inappropriate treatment had been ongoing from 2017.  Arising from these conflicting statements there is uncertainty about the period of time the complainant alleges she was subject to sexual harassment. 

The cognisable period to submit a complaint is generally within 6 months of the date the complaint is received by the WRC.  The complainant accepted that the cognisable period for this complaint runs from 18 February 2022 to 17 August 2022.  The complainant provided details in her submission and oral evidence of seven events and dates on which she alleges the sexual harassment occurred.  Only two of those alleged events fall within the cognisable period.  They are the events alleged to have occurred on 03 and 9 March 2022.  The earlier alleged events occurred between March and August 2021.  The incidents described are; 23 March 2021 – comments about the complainant’s legs, April to July 2021 comments about her walk, loss of weight, vulgar sexually suggestive gestures, comments about a night away with her partner, 20 August 2021 unwelcome sexual advances from her manager while exposing himself.  Within the cognisable period the two incidents that the complainant found to be unwelcome and unacceptable are; 03 March 2022 comments about her appearance and 09 March 2022 comments about a cure of the complainant’s laryngitis and vulgar gestures.

A complaint of sexual harassment requires that the conduct complained about must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person”.  The test is therefore a subjective test and there is no need for a comparator.  The Labour Court approved the application of a subjective test in its decision in Nail Zone v A Worker EDA 1023, stating:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.

It was the complainant’s evidence that the alleged incidents were unwanted, inappropriate and humiliating.  I accept that if the incidents, as described by the complainant, occurred then she would have found them unwanted, inappropriate and humiliating.

In addition, a complaint of sexual harassment, must be based on conduct that is of a sexual nature.

I am satisfied that the alleged conduct, as described by the complainant, may be regarded as conduct of a sexual nature.  The complainant in her evidence stated that the alleged conduct had upset her and described how she changed her type of dress to make herself invisible.

All of the alleged events occurred without witnesses, as often happens in sexual harassment cases.  However, the complainant claims that she told Ms D about the alleged unwelcome comments made on 23 March 2021.  Ms D in her evidence contradicted that claim, she stated she did not witness and was not told about the comments the complainant attributed to Mr K.

The complainant’s witness, Ms A, was employed by the respondent up to July 2021.  Her evidence related to a period before the cognisable period but she did not witness any of the alleged events complained about by the complainant.

The respondent’s witnesses, Ms D and Ms C, both described themselves as being friendly with the complainant.  Ms D shared the office with the complainant.  Their evidence was that the complainant had discussed personal issues with each of them at different times but, she never referred to or alleged any unwanted or inappropriate treatment by Mr K.  Ms D was part of the ‘lunch club’ with the complainant and Mr K.  It was Ms D’s evidence that the complainant did not raise any issue of sexual harassment with her at any time but, continued to work with and have lunch with her up to her resignation. 

The most serious allegation is that on 20 August 2021, again outside the cognisable period, Mr K came into the complainant’s office made an unwelcome sexual advance and exposed himself to her.  This allegation, like all the others, is denied by Mr K.  The complainant claims that when she rejected this behaviour he walked away.  This is such a serious allegation that if it occurred it is hard to understand why the complainant did not say or do anything about it at that time or soon afterwards.  The complainant continued to work and have lunch with her colleagues as normal.   She did not raise any complaint until the following year. 

In her evidence the complainant acknowledged that she was aware of the respondent’s policies, as Mr K was her manager the usual line for complaints about such behaviour was not available to her.  However, the complainant knew one member of the Board, Mr D, and had the names of at least two other Board members but she did not make anyone aware of this alleged conduct by Mr K. 

On balance the weight of evidence is against the complainant establishing that the alleged incidents occurred.  While it is not unusual for sexual harassment to occur out of sight of witnesses, I find it lacks creditability that the complainant would take no action at all about such sexual harassment. The complainant continued to work with the alleged harasser without displaying any outward sign to other employees, with whom she had a good relationship, of having any difficulties with Mr K.  Particularly so in the context of the alleged events of 20 August 2021.  The evidence of Ms D, Ms PC and Mr K is that the complainant was part of the ‘lunch club’ regularly having lunch with Ms D and Mr K, until her resignation.

There were changes at work with the appointment of Ms PC as the new Team Leader in February 2022.  That appointment resulted in a change in the reporting structure with the complainant now reporting to Ms PC rather that Mr K.  That might be regarded as a relief by many in the context of the alleged harassment but not so by the complainant.  The complainant’s evidence was that there were changes being proposed to the programmes she supervised, and she did not agree with such changes.  Ms PC’s evidence was that the complainant was not cooperative with her in sharing information that she needed, particularly about the funding of the programme.  It seems that the different views on the complainant’s programme and reporting lines resulted in an unhappy work environment from the complainant’s viewpoint.

The first time the complainant claims she made any complaint coincided with a time of change at work, change that she was not happy about.  Also, the complainant in her evidence stated that in 2022 she was having personal family relationship difficulties and was at times sleeping on a couch.  Arising from the complainant’s personal relationship problems, the respondent paid for the complainant to attend several counselling sessions in January 2022.  That was clearly a very stressful time for the complainant. 

The complainant contends that she made a complaint of sexual harassment on 05 April, 11 June and 29 July 2022.  I have carefully considered the evidence of all parties to the background against which it is claimed the complaints was made.   

The complainant’s evidence was that she informed her liaison person in the funding Government Department of the alleged sexual harassment on 05 April 2022.  The is no corroboration of the complainant informing this liaison person.  The Government Department provided funding for the programme that the complainant supervised but has no other involvement in the employment relationship between the complainant and the respondent.   On the balance of probabilities, I am satisfied that the Government Department did not receive a complaint concerning the respondent in April 2022.

The complainant in her evidence stated that on 11 June 2022, she met with the then Chairperson of the Board, Mr D, at his home and made a complaint to him about Mr K.  The fact of this meeting having taken place is in dispute.  Mr D’s evidence was that no such meeting took place.  It was not disputed that the complainant attended at Mr D’s house from time to time as she was involved in another organisation with Mr D’s partner. 

It was also Mr D’s evidence that had the complainant discussed the alleged sexual harassment with him he would have taken action to address those issues.  The evidence of the complainant and Mr D, is that they did meet at the respondent’s premises on 20 June 2022.  Mr D was on site for a Health & Safety audit, but he met with the complainant in the kitchen for about 30 minutes.  The evidence of the complainant and Mr D was that the only issues discussed at that meeting related to the work issues, changes to the programme and reporting line, no reference was made to sexual harassment.  As a result of that discussion Mr D arranged to send the complainant a copy of her contract of employment.   Mr D e-mailed the contract to the complainant on 30 June 2022.

I find it is not credible that allegedly having made a complaint of sexual harassment on 11 June no reference was made to that when the complainant and Mr D met nine days later, even to check if he had taken any action.  On the balance of probabilities, I am satisfied that the complainant did not make a complaint of sexual harassment to the Chairperson of the Board on 11 June 2022. 

The complainant e-mailed her complaint to Mr D on 29 July 2022 at the last e-mail address she had for him.  One that he says he was no longer using as he had changed to the official Chair@ email.  I note from the copy of the e-mail presented with the submissions that the e-mail was sent at 16.10 on Friday afternoon, 29 July 2022.  That was a holiday weekend.  Mr D in his evidence said he did not receive that e-mail and he first saw it the week before the hearing.  Mr D resigned as Chairperson, for the personal reasons outlined in his evidence, effective 01 August 2022 by letter to the Board, which was received by the respondent on 02 August 2022.  Having carefully considered all the evidence, the timing of the e-mail and the address to which it was sent, I am satisfied that Mr D did not see this complaint before he resigned as Chairperson.

The complainant ended her 29 July 2022 e-mail “Unless something is done immediately, I will have no alternative but to leave my role.”   It is understandable that an employee would expect their employer to act immediately in response to such serious allegations.  The complainant did not receive an acknowledgement of her complaint and there is no evidence that she made any enquiry as to why or what was happening with her complaint.  The complainant in her evidence could not explain why she did not try to follow-up on the lack of response to that e-mail.

Based on the evidence presented I am satisfied that the first time the complainant made a complaint of sexual harassment was when she sent the e-mail on 29 July 2022.  I am satisfied that the respondent did not receive the e-mail of 29 July 2022 until a copy was sent by the complainant’s solicitors to the respondent’s solicitors, as an attachment to a letter, on 28 October 2022.  I am satisfied that the respondent became aware of the complaints of sexual harassment on 05 September 2022.

The respondent had in place a Harassment/Bullying Policy that sets out the procedure to be followed in the event an employee has a complaint.  At clause 7.2.3 of the policy, it states “On receipt of a complaint, your manager or Chairperson of the Board will deal with the complaint in a professional and confidential manner ...”.  Letters from the complainant’s solicitors had been sent by e-mail to a non-existent e-mail address.  Subsequently, three letters were sent by post and these were received together on 05 September 2022.  Based on the evidence presented I am satisfied that the respondent only received the complaint on 05 September 2022.  I note that before the respondent had received the complaints the complainant had submitted a complaint to the WRC on 17 August 2022 and had resigned on 02 September 2022, thereby not allowing the respondent any opportunity to deal with her complaints.

The respondent’s Harassment/Bullying Policy states that on receipt of a complaint “An investigation will commence promptly and impartially and will maintain confidentially at all times”.  Having received that complaint on 05 September 2022 the respondent appointed external investigators to investigate the complaints.  The complainant was invited to engage with the investigation but did not do so.  Initially the complainant was ill and the investigation was delayed to allow her time to participate.  However, the complainant did not engage with the investigators at any stage.  The investigation report found the allegations of sexual harassment were not well founded.

Having carefully considered the testimony of the parties, the submissions and all the documents presented I find, on the balance of probabilities, that the complainant has not established that she was subjected to harassment or sexual harassment by Mr K as alleged by her on the dates within the cognisable period.  The allegations of sexual harassment on dates outside the cognisable period are, on the balance of probabilities, I consider not established but, those allegations are outside my jurisdiction in this complaint. 

I find, on the balance of probabilities, that the complainant has not proved the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination by sexual harassment. In those circumstances the burden of proof does not shift to the respondent.

I am satisfied that the respondent company received a complaint alleging sexual harassment from the complainant’s solicitors on 05 September 2022 and it had not received any complaint alleging sexual harassment before that date.  I note that the respondent had in place a Harassment/Bullying policy and that it was the evidence of the complainant and other employees that the policy was available in hard and soft copy.  I note that in line section 7.2.3 of that policy the respondent appointed an external investigator to investigate the complaints of sexual harassment as soon as it became aware of the complaints.

Conclusion

Based on the evidence presented I am satisfied that the first complaint of sexual harassment was made by the complainant by e-mail on 29 July 2022.  I am satisfied that the respondent did not receive a copy of the said e-mail of 29 July 2022 until 29 October 2022.  I am satisfied that the first time the respondent received the complainant’s complaint of sexual harassment 05 September 2022.

Having carefully considered the evidence, submissions and documents presented I find, on the balance of probabilities, that the complainant has not proved the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination by sexual harassment.

I find the complainant was not discriminated against by the respondent by reason of harassment or sexual harassment.

Victimisation

The complainant of victimisation was withdrawn at the hearing.

CA-00052819-001

Complaint submitted pursuant to section 77 of the Employment Equality Act, 1998

This complaint was withdrawn at the hearing.

CA-00052819-002

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991

This complaint was withdrawn at the hearing.

CA-00052272-01

Complaint submitted pursuant to section 77 of the Employment Equality Act, 1998

Complaint of discrimination by reason of gender.

The complainant did not present evidence to support a complaint that she was treated less favourably by the respondent to the way a man was or would have been treated in a comparable situation.  I find the complainant has not established facts from which it may be presumed she was treated less favourably than another colleague who was a man.  I decide the complainant was not discriminated against by the respondent by reason of her gender.

Complainant of unlawful treatment and discrimination by the respondent by sexual harassment.

Having carefully considered the evidence, submissions and documents presented I find on the balance of probabilities, that the complainant has not proved the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination by sexual harassment.

I decide that the complainant was not discriminated against by the respondent by reason of harassment or sexual harassment.

Complaint of Victimisation

This complaint was withdrawn at the hearing.

CA-00052819-001

Complaint submitted pursuant to section 77 of the Employment Equality Act, 1998

This complaint was withdrawn at the hearing.

CA-00052819-002

Complaint submitted pursuant to section 6 of the Payment of Wages Act, 1991

This complaint was withdrawn at the hearing.

Gender Equality

Burden of Proof

Harassment

Sexual Harassment

Vicarious Liability