ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057862
Parties:
| Complainant | Respondent |
Parties | Marcelo Rodrigues Ortega | Gather & Gather Ireland Ltd |
| Complainant | Respondent |
Representatives | Self-Represented | Ms Hannah Rowe of IBEC supported by Company Managers |
Complaint:
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-00070237-001 | 24/03/2025 |
Date of Adjudication Hearing: 19/09/2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
The issue of anonymisation in the published finding of the WRC was considered by the Parties but not deemed necessary.
Background:
The issues in contention concern an allegation of Discrimination on the Ground of Race & accompanying Harassment, by a Commis Chef employed by a major Catering/Food Supply Company. The employment began on the 19th November 2024 and continues. The rate of pay was stated by the Complainant to have been €1,125 per fortnight for 37.5-hour week.
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1: Summary of Complainant’s Case:
The Complainant gave extensive Oral testimony. He outlined a difficult situation he had experienced with a Manager, Ms X. She had been overtly racist, had called him “her slave”, had constantly made derogatory comments regarding his hair (he was of African/Indigenous background) and generally belittled him whenever possible. He accepted that the Respondent had investigated the matter and that the Manager concerned was no longer with the Company. However, he felt, in closing summary, that the Respondent employer had not treated the Racism issue with appropriate seriousness. Irish people and people of a generally Caucasian ethnic origin, in the Respondent employment still enjoyed a superior cultural work environment free from the Harassment he had suffered. It was, to use a summary word, an alleged case of “Cultural Bias”. The Complainant was cross examined by Ms Rowe of IBEC for the Respondent and largely reiterated the above comments.
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2: Summary of Respondent’s Case:
The Respondent was represented by Ms Rowe of IBEC supported by a number of Managers who gave Oral testimony. A comprehensive Written submission was presented in support. In essence the Respondent case was that they had a zero-tolerance policy on all Discriminatory matters. The Complaints made by the Complainant against the Manager had been investigated under stage one of the Code of Procedures and found to be of a level that required the Manager be referred to the Disciplinary stage. The Manager concerned had left the Respondent’s employment before any formal Disciplinary investigation could take place. The Respondent resolutely refuted any allegations that they had any systemic culture of Discrimination. Ms Rowe pointed to their extensive suite of HR Policies & well documented Anti-Discrimination training programmes for all Staff and especially staff in supervisory positions. The burden of proof requirement on a Complainant, Section 85 A of the Act, was cited. This was supported by an extensive body of case law precedents. (The Melbury v Valpeters case, EDA0917, Mitchell v Southern Health Board DEE011 & Margetts v Graham Anthony EDA038 being principal cases cited). The Respondent contended that they could not be held “vicariously” liable for the alleged misdemeanours of one individual Manager. Ms Rowe cited extensively from Section 14 A (2) of the Employment Equality Act, 1998 Section 14A Harassment and sexual harassment. - Employment Equality Act,1998 (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
In plain English this allows an Employer to present as a defence that they took all reasonable steps to prevent Harassment, and such follow up steps to investigate & where possible to redress the issues. In this case the Respondent clearly took steps to speedily investigate and were in the process of following through their procedures when the alleged staff member left their employment. Their procedures were robust, and all staff had been fully trained. Managers gave evidence to the Hearing of all these matters. Full documentary evidence, training records etc in support was provided. The Respondent has a Respect, Dignity and Fairness at Work Policy which was presented in evidence. This policy was in keeping with SI No 238 of 2012 Employment Equality Act 1998 Code of Practice. In addition, the internal Policy on Grievance and Discipline was also presented. Legal Precedent cases in support were cited (Worker v a Hotel [2010] ELR 72 & William McCamley v Dublin Bus DEC-E2015-100) being the principal cases referenced. In summary, Ms Rowe for the Respondent argued that the Company had taken all reasonable steps to prevent and in so far as possible redress any suggestions of Harassment and or Discrimination on the Race Grounds as cited by the Respondent. Section 14 A (2) had been completely and satisfactorily complied with. The Complainant cross examined the Managers who gave evidence but largely reiterated his grounds of complaint regarding “Cultural Bias”. |
3: Findings and Conclusions:
3:1 The Legal Positon. Section 14 A of the Employment Equality Act 1998 has particular relevance to this case. It is quoted above but is worth repeating. Section 14A Harassment and sexual harassment. - Employment Equality Act,1998 (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.
The Legal precedents (Worker v a Hotel [2010] ELR 72 & William McCamley v Dublin Bus DEC-E2015-100) quoted by the Respondent are also worth noting.
However legal precedents notwithstanding all cases rest on their own evidential matrix and local context.
3:2 Review of Evidence presented - both Oral and Written. The overwhelming bulk of the evidence presented both Orally and In Writing by the Respondent detailed the extensive Respect, Dignity and Fairness at Work Policy. Details of the extensive training that all staff receive on the policy was presented. This factual evidence was not contested by the Complainant. He did, however, in his closing remarks contend that it was a Policy written from a “majority Irish Ethic” point of view and failed to capture the “Discriminated against Ethnic viewpoint” of persons such as himself coming from a non-Irish or White Caucasian background. The Adjudication view as that the Policy was well written and comprehensively implemented in what was a large multi racial staff origin organisation. It certainly was a major supportive element of the Section 14 A Respondent defence. The actions of the Respondent in speedily following up the Complainant’s complaints were well documented. The Investigation Report was clear cut. The process was terminated by the voluntary Resignation of the alleged Manager. In practical reality there was little else the Respondent could do at that stage. The Act refers to “Reasonably practicable” steps by an Employer/Respondent. The Complainant was on Sick “Stress” Leave for a period in early 2025. The evidence pointed to the Respondent adopting a very sympathetic policy and easing the Complainant back to work following the departure of the Manager, Ms X. There was, it appeared genuine concern for the Complainant. It was the Adjudication view that the evidence clearly showed the Respondent discharged the Burden of “Reasonable Steps” on all fronts. The Section 14 A defence to the Complaint is accepted.
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4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts. Section 82 of the Employment Equality Act,1998 applies.
CA: -00070237-001
It is decided by the Adjudication Officer that Section 14 A (2) of the Employment Equality Act,1998 applies to this case.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— Underlined by Adjudication Officer
The defence is accepted. Accordingly, the complaint fails.
(As a closing aside the Adjudication Officer and with no statutory basis suggests that the Parties look at the Respect, Dignity and Fairness at Work Policy to see if the Complainant’s very strongly held Ethnic & Non Caucasian views on the alleged unintentional “Cultural flavour” of the Policyhave any merit or scope for a future Revision.)
Dated: 5th of December 2025.
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Employment Equality Act, Section 14 A defence. |