ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053151
Parties:
| Complainant | Respondent |
Parties | Serhat Aksakal | Kivaway2 Limited trading as the Odeon |
Representatives |
| Peter Ryan RA Consulting |
Complaints:
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-00065040-001 | 29/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00065040-002 | 29/07/2024 |
Date of Adjudication Hearing: 05/11/2024 and 21/01/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing as well as any submission provided in the course of the hearing both written (and which have been opened to me).
The Complainant herein 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 his Workplace Relations Complaint Form dated the 29th of July 2024) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Gender (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where at :-
Sub Section 6 (1) For the purpose of this Act…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) …..(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(a) That one is a woman and the other is a man (the “gender ground”)…
In the event that the Complainant is successful, it is open to me to make an award for compensation for the effects of acts of discrimination or victimisation (if claimed) and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
It is noted that the burden of proof in all Equality Directives recognises the difficulty of giving evidence of direct discrimination. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows:
“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
This has been transposed into Irish law by section 85A of the Employment Equality Acts:
“in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him/her, it is for the respondent to prove the contrary.”
This amounts to the Prima Facie obligation on the Complainant. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
There is no exhaustive list of circumstances which are required in terms of discharging the initial burden - the Labour Court has consistently stated that “the type or range of facts which may be relied upon by a complainant can vary significantly from case to case. “.
The WRC approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both the WRC and the Labour Court starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“the 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.”
The Labour Court has also consistently stated that:
“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts” Kieran McCarthy v Cork City CouncilEDA082
Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.
In Nevins, Murphy & Flood v Portroe Stevedores (EDA 051) the Labour Court held in adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite: -
“that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden…. Mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.
The Adjudicator must determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of.
In addition to this, the Complainant makes complaint that he has been sexually harassed in the workplace. Sexual Harassment is described in Section 14(A)(7)(ii) of the Acts –
“.. any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which…. has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
Section 14A deals with the issue of sexual harassment in the workplace. For the purposes of this case, where an employee (the Complainant) is sexually harassed by another co-employee at the workplace then the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
Where such sexual harassment of the victim would be regarded as discrimination by the employer aforesaid, it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the co-employee from harassing or sexually harassing the Complainant.
Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. This is conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
In addition to the foregoing the Complainant has brought a further complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. In particular the Complainant says that he has not been paid tips due and owing from the six-month period prior to this complaint. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. There were two days assigned to the hearing of this matter. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there might be potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.
At the Complainant’s request, an interpreter was provided to assist with the hearing. The interpreter made the appropriate affirmation.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of July 2024.
At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant provided me with two separate submissions (dealing with the separate complaints) dated the 15th of October 2024. The Complainant had previously provided a witness statement of colleague L sent on the 1st of August 2024. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was the target of a rather crude sexual joke about being taken sexually from behind. His Co-worker who was also his immediate line manger acted in this way. The Complainant further says that he notified another manager and asserts that she did not operate in a satisfactory way in that she did not let him go home and/or continued to roster the Complainant with the perpetrator. The Complainant submitted a formal complaint to R. The Complainant says he never saw any of the notes of the Investigation conducted by R and was never kept up to date with where the investigation was at. A separate was also made concerning the distribution and/or payment of tips and gratuities. Where it also became necessary (and where the Complainant had no support) I explained how the Adjudication process operated with particular emphasis on the burden of proof -Prima Facie proof - which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had Human Resource representation at this hearing. The Respondent representative provided me with two written submissions dated 1st of November 2024 and the 16th of January 2025. I have additionally heard from a number of witnesses for the Respondent. These included PK the owner of the restaurant, R McD the Operations Director and AM the General Manager at the premises. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Complainant. The Respondent rejects that the Complainant has made out a Prima Facie case of sexual harassment and without prejudice to that assertion the Respondent also defends its actions as being appropriate, proportionate and victim-centric. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant worked as a commis chef at the busy Respondent restaurant. The Complainant started his employment in this workplace in March of 2022. He was promoted from kitchen porter to junior chef in the August of that year. On the 4th of July 2024 the witness described an incident in the workplace which he asserted amounted to unwanted physical and verbal conduct of a sexual nature.The conduct he said had the purpose and effect of violating the Complainant’s dignity and created a degrading, humiliating and offensive environment for him. The Complainant says that he was bending down to retrieve something from below the countertop level. He says the head chef Mr. M came up behind him and started to thrust against him "as if he was riding a horse". The said Mr. M’s genital area was pressing into him – either at the side or at the back. The Complainant says that Mr. M accompanied the sexual thrusting gesture with a loud yee-haw being an expression of excitement commonly associated with cowboys. The Complainant says that he was shocked at this incident was confused and upset that Mr. M was laughing. Mr. M was the head chef and therefore well above the Complainant in the workplace hierarchy. The Complainant has always confirmed that this was a one-off incident and therefore not capable of being anticipated by him or the Employer. The Complainant immediately reported this matter to his line manager AM. He says he specifically described the incident as one of sexual harassment. He says that he was humiliated at the undignified experience. He said that the response of AM was that she would talk to the head chef. The Complainant was critical of the fact that AM had not immediately invited the Complainant to raise a formal complaint and nor had she directed him to the staff handbook policy on dignity at work. I accept that the Complainant was aware of the Grievance option and was aware of the fact that there was a dignity at work policy in operation in the workplace. The Complainant says he should have been sent straight home on that date and was instead obliged to continue working even though Mr. M was at all times in relatively close proximity in the workplace. The Complainant says that another chef L asked him if he was okay, and that he (L) had seen everything. In direct conflict with this narrative, is a text message thread between AM and her manger R McD wherein the complaint is clearly taken very seriously, and I noted that the Complainant was to be asked to make a statement and to be allowed to go home. According to this thread, the Complainant himself opted to stay on in the workplace albeit working away from the kitchen and in the separate barbecue area. I cannot ignore the corroborative nature of these real time text messages. AM says she immediately set about the task of investigating the alleged incident which included a preliminary conversation with Mr. M (the alleged perpetrator). AM says on foot of the direction from RMcD she asked that the Complainant prepare and deliver a concise statement as to what had happened. AM says she talked to Mr. M and he was told to apologise which she understood he did do on the day in question. The Complainant did not return to work the next day and was not back in the workplace until the 6th of July – two days after the incident. I accept that the Complainant told his Employer that he had a strep throat though he says he was actually stressed by the incident. In the meantime, AM says she had talked with Mr. M and advised Mr. M that senior management including the proprietor, were on notice of the incident. Mr. M did not present to give evidence before me. I accept that it was not necessarily clear (at that exact point in time) to the Complainant that anyone had even talked to Mr M. The Complainant denies that Mr. M had apologised. The Complainant confirmed that when he returned to work, he was put to work at the barbecue area though he still had to regularly interact with Mr. M. The Complainant said he did not feel comfortable and safe in the workplace. The Respondent witnesses had understood that the Complainant was satisfied to work in the Barbecue area as it was set away from the kitchen. The Complainant had decided that he wanted to formally make an issue of what had happened to him. The Complainant provided AM with a full statement on the 10th of July which was one week after a verbal complaint had been made. The Complainant was aware of the dignity at work policy though he seemed to suggest in cross examination that the policy failed to give adequate guidance. The statement of complaint was a well-crafted complaint wherein the Complainant looked for workplace safety. I understand that the Complainant might have had some Chat GPT assistance with this, and with the subsequent workplace relations complaint form. In general terms I have no difficulty with this fact, save that the Complainant must ensure the language used perfectly reflects what happened. In this regard there was a significant issue around an accusation that management had done nothing when the evidence tends to show that management took the matter seriously. It was put to the complainant that he was prompted by AI to include this complaint which was ultimately a misrepresentation of what was in fact happening in the period after the incident. RMcD gave evidence that he had required clarifications in respect of the first statement presented by the Complainant. There were seemingly discrepancies between the statement made by the Complainant and that of the independent witness L. In addition, the statement made by Mr. M concerning the incident presented a different account again of the unseemly though brief interaction. The Complainant said that after making his initial complaint, the company continued to roster him to work alongside Mr M - and he pointed to three dates in late July and early August whereon, he submitted, that he and Mr. M were assigned together to a particular work area with nobody else present. The employer's position was that he was assigned to a different work area. However, the Complainant said he had been required to work in the same room as Mr M for portions of the relevant shifts. The Complainant was contacted on the 11th of July by RMcD. This communication was via whats app and the Complainant confirmed that RMcD had stated that that the workplace was taking the matter very seriously and that a full investigation was underway. RMcD texted him again on the 17th of July and then met with the Complainant on the 18th of July. There are no notes of this meeting and therefore it’s not possible to know exactly what was said. The Complainant said that he told RMcD that he was uncomfortable working alongside Mr. M in any capacity. On the 19th of July the Complainant was advised that the investigation would be wrapped up within a week. The Complainant seemed aware that a number of witnesses (not including himself and Mr. M) needed to be contacted for witness statements. The Complainant repeatedly stated that he felt that he was not being given adequate information and seemed to think that he should be presented with all the investigation material as and when gathered. The Complainant seemed unaware of the balancing act required by the Employer to ensure that the rights of both victim and perpetrator are protected appropriately. The Complainant was worried when AM asked to have sight of the Complainant’s work permit in and around this time. This seemingly was believed by the Complainant to be a pointed enquiry. Nothing further was made of this point. On the 24th of July 2024 the Complainant triggered a workplace relations complaint by a complaint form presented to the WRC. Contained therein is the claim before this hearing concerning sexual harassment and discrimination together with a Payment of Wages claim. The complaint was lodged with the WRC 25 days after the initial incident, and 15 days after the complaint had been formally presented to the Employer. On the 7th of August 2024 (at the conclusion of the investigation and disciplinary process) the Respondent terminated the Contract of Employment with its head chef Mr. M. I understand that the investigation included 10 separate meetings with up to seven members of staff. The Complainant’s own statement was not finally clarified until after the 24th of July 2024. On balance I accept that the Complainant was subjected to an unedifying incident in the workplace. The said incident has undeniable sexual overtones. I am further satisfied that the act of sexual harassment of the victim can be regarded as discrimination by the employer. However, it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the co-employee from sexually harassing the Complainant. In this regard there is an unequivocal reaction on the part of the Employer staff such that I have no difficulty accepting that this was a workplace and known to be a workplace wherein behaviour such as this was not and is not tolerated. The Respondent took the complaint very seriously right from the start. The Respondent did not push the Complainant and allowed the Complainant to determine his own pace. It is quite clear that the Respondent witnesses were in constant contact with him and were at all times conducting an investigation into the incident. In doing this, the Respondent had to also be respectful of the fact that Mr.M was also entitled to due process. The Complainant has not established that there was any wrongdoing on the part of his Employer at the time that the complaint herein issued. Regarding the issue of the non-payment of tips, I am satisfied that eh Respondent has made good the under-payment made to the Complainant. I have had sight of the wage slip demonstrating this fact. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint - CA-00065040-002 -in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00065040-001 – The Complainant has made out a prima facie case that there was an incident of sexual harassment in the workplace. In its defence, the Employer has established that it had taken all reasonable steps to prevent such an incident occurring, and has further established that it took all reasonable steps in response to the said incident that did occur. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00065040-002 – The complaint herein was well founded but appropriate compensation has already been paid.
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Dated: 20th May 2025.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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