Complainant

Respondent

Parties

Patrick  Kinsella

R.F.C Security Group

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-00070332-001

25/03/2025

The complainant submitted his complaints to the WRC on March 25th, 2025, under the Employment Equality Acts.

He gave his evidence on oath.

In due course he identified three episodes giving rise to his complaint.

The first of these occurred on October 14th, 2024 in the course of which he says he was subjected to both general abuse in relation to his physical characteristics, which he submits represents the discrimination on the age ground, but was also the subject of very explicit sexual harassment by means of remarks made by a manager which included a stated intention to sexually abuse the complainant. He provided detail of what was said in his evidence.

He says the specific reference to the manner in which he was spoken to about his speaking style was discriminatory on the grounds of his age.

The second episode occurred in late December when he was again subjected to sexually offensive comments by a different manager.

The third episode occurred when he was summoned to a meeting in the control room on January 18th, 2025, and was again exposed to sexually explicit comments, as well as disrespectful comments.

He says that he raised these on a couple of occasions with his manager and specifically on February 15th, 2025, and again in the course of a disciplinary hearing on February 21st.

RFC Security Ltd ("the respondent") is a private security provider employing licensed officers at various client sites nationwide. Patrick Kinsella was employed by the company from January 18th, 2024, until his resignation on  March 28th, 2025. He held the position of static security officer and was assigned to several sites during his employment.

The complainant has filed a complaint under the Employment Equality Acts 1998-2015, alleging that he was subjected to bullying, sexual harassment, and discrimination by colleagues while stationed at Northside Shopping Centre. The respondent fully denies these allegations and submits that no unlawful treatment occurred.

The company acted fairly and promptly upon receiving Mr. Kinsella's complaint by halting disciplinary proceedings and initiating a formal internal investigation. The findings of that process concluded that the allegations could not be substantiated. The Respondent maintains that the Complainant voluntarily resigned and that there is no evidence of discriminatory or harassing conduct on the part of the company.

During his time with the company, he was assigned to several client sites.  A number of these assignments came to an end at the request of clients’ due issues about Mr. Kinsella's conduct and performance.

As a result of these issues, Mr. Kinsella was issued with a formal written warning on September 9th,  2024. This warning addressed his workplace behaviour and reminded him of the standards expected of all RFC Security employees. Although this was the only formal warning issued during his employment, the company made it clear that further issues would not be tolerated and that ongoing improvement was required.

Despite this warning, further incidents occurred in early 2025. On February 15th, Mr. Kinsella walked off site at Northside Shopping Centre without authorisation. A disciplinary meeting was scheduled for February 21st  2025 to address this and other matters. However, during that meeting, Mr. Kinsella raised a number of serious allegations relating to bullying and inappropriate behaviour by colleagues. In line with the company's grievance procedure and commitment to fair process, the disciplinary meeting was paused and a formal investigation into the allegations was immediately launched.

The investigation included several allegations relating to Mr. Kinsella's assignment at Northside Shopping Centre, where he had been based since late 2024. Among these was an incident on 20 January 2025 involving a disagreement with Mr. James Morgan regarding mobile phone usage. CCTV footage showed Mr. Kinsella acting in an agitated manner before being approached and briefly held by Mr. Morgan. The matter was quickly de-escalated, and the complainant resumed his duties following a conversation with site supervisors.

Statements were collected from all relevant parties. While some colleagues  acknowledged that certain remarks may have been poorly judged, there was no evidence to support Mr. Kinsella's core allegations of bullying, harassment, or sexually inappropriate conduct. In contrast, the investigation established that Mr. Kinsella had made racially inappropriate remarks over the site radio and had used threatening language toward colleagues. These incidents were not denied and were supported by credible witness accounts.

After returning from annual leave on February 28th, 2025, Mr. Kinsella was offered alternative work at a different site. He initially accepted this offer but left the site after only one hour, citing a lack of toilet facilities and reporting that he had broken the locker key.

No further shifts were accepted by Mr. Kinsella after this point, and on March 28th, 2025, he resigned before either the disciplinary or grievance processes could be concluded.

Throughout his employment, RFC Security made repeated efforts to support Mr. Kinsella. He was reassigned to several locations, given additional opportunities to work, and offered personal support. In total, he received financial assistance on three separate occasions amounting to €900. These payments were made in good faith and reflect the company's intention to support him during periods of personal difficulty.

At all times, RFC Security Group acted fairly, followed appropriate procedures, and sought to treat Mr. Kinsella with dignity and respect.

Legal Submission

The Respondent denies any breach of the Employment Equality Acts 1998 - 2015 under section 77 and submits that no prima facie case of unlawful treatment has been established by the Complainant.

At no point did the complainant identify or suggest that the alleged behaviour was connected to any of the nine protected characteristics under the Acts - namely gender, civil status, family status, sexual orientation, religion, age, disability, race, or membership of the Traveller community. The allegations centred on interpersonal disputes and informal comments but lacked any legal basis under the Act.

He has not clearly identified a protected ground under the legislation. While the claim includes allegations of harassment and humiliation, there is no indication that these actions, even if taken at face value, were connected to a protected characteristic such as gender, race, sexual orientation, religion, or membership of the Traveller community. This is a critical omission in establishing a prima facie case under equality law.

Furthermore, the respondent followed fair procedures in allrespects. Once the  complaint wasmade,disciplinary action waspaused.Afullinvestigationwaslaunchedand conducted impartially.Witnesseswereinterviewed,CCTVreviewed,andthecomplainantwasgiventhe opportunity to raise allconcerns. The company acted promptly and in accordance with internal grievance procedures. Itmust also benoted  that several allegations appear tohave been raised onlyafter the disciplinary processes hadcommenced. Whilethe company doesnotsuggest thatthis invalidatesthecomplaint,thetimingwasarelevant consideration inassessingcredibility.

Mr. Kinsella indicated that he may have raised issues informally with his supervisor, Mr. Chris Lynch, but no record of any grievance being escalated to HR or formally submitted exists prior to February 2025.

The complainant voluntarily resigned before the disciplinary or grievance process could be completed. Despite being offered further work, Mr. Kinsella walked off-site again and later declined any alternative arrangements. His resignation brought his employment to an end by his own initiative.

At all stages, RFC Security applied its internal disciplinary procedures fairly and proportionately. A formal warning was issued to Mr. Kinsella in September 2024 following client complaints and site removals, yet the company continued to offer him further assignments and support thereafter.

All employees were treated with dignity and respect and that the company adhered to its policies on conduct, dignity at work, and grievance handling at all times.

RFC Security Group maintains comprehensive policies on employee conduct and dignity at work, as set out in the Employee Handbook. These policies apply equally to all staff and are enforced consistently. Upon receiving any complaint, the company's grievance procedures were activated without delay. Managers and supervisors are trained to handle complaints in accordance with these protocols.

Upon receiving the grievance, RFC Security immediately paused a pending disciplinary process and launched a full internal investigation. All relevant parties were interviewed, CCTV was reviewed, and all allegations were examined thoroughly. The investigation found no evidence to support claims of discriminatory treatment, and no protected characteristic Was identified in connection with the alleged conduct.

The complainant relies on three incidents.

These took place on October 14th, in late December 2024 and in late January 2025.

In his evidence he relied on all three as having contained elements of sexual harassment arising from the language used. He says that the first also was an act of discrimination on the age ground. They allegedly were made by two co-workers who were in supervisory positions.

The complaint of discrimination is the easiest to address.

 The complainant, and this was clear at the hearing, has difficulty in expressing himself clearly as a result (and he acknowledges this) of serious dental problems. He says that he was mocked and subjected to abuse on this point, and it was suggested to him that it was a result of smoking a pipe or abusing drugs; allegations he strongly denies.

The complainant might have made out some case on this on the disability ground, but it is hard to see how any breach might be inferred from this on the age ground. He has failed to meet any element of the burden of proof, and I find that no breach of the Equality Act may be discerned from these facts.

The allegations of sexual harassment then come into view.

In the first episode on October 14th the complainant alleges that very explicit and sexually threatening language was used, up to and including a threat of anal rape and related violence. While this may have been disputed by the alleged perpetrator, the allegation of sexual harassment is at least clear. The language alleged to have been used by the co-worker was vile.

While he says that this continued on a regular basis, he was hazy about the detail, apart from an incident two weeks before the Christmas Party (December 28th) but, while there is no reference to any sexual content at this exchange in his original submission but says it was related to his dental problems, he vaguely suggested that sexually explicit comments were made on this occasion or earlier.

However, he said it started again between January 20th and 24th.  The initial issue appeared to relate to the use of a mobile phone during working hours in breach of company policy, but it appears that some unacceptable sexual comments were made on this occasion also.

While the complainant was somewhat vague about the detail of interactions following the October meeting there is no doubt about the nature of his allegations in respect of that meeting. They are detailed and explicit, and more importantly credible.

It seems more than probable, for all his inability to recall precisely when the subsequent comments were made, that having done so on October 14th the perpetrators did so again as alleged by the complainant and his evidence is again credible.

The complainant says he brought these to the attention of the respondent initially by means of a text message to his supervisor on January 15th, but the respondent was not made aware of these complaints until the complainant raised them in the course of a disciplinary hearing some days later on January 21st. He should have acted much earlier, although that is not always easy.

Given the alleged content of the exchanges in October it is odd that he did nothing about them until two months later, and then in the course of a disciplinary meeting. (The complainant was on a formal written warning from the previous September.)

Nothing had been done by his supervisor about the complaint on February 15th, which did not, incidentally, refer to sexual harassment.

The respondent initiated an investigation, but it had not concluded its work when he resigned on March 25th, not having worked since the day of the disciplinary hearing. He had referred the matter to the WRC some three days earlier.

The subsequent investigation, which for quite unacceptable reasons did not conclude until July 2025 did not uphold the allegations. it was an unusual investigation in that, despite being triggered by the complainant‘s grievance it bizarrely contained almost as many complaints against him as were made by him.

In respect of the key allegations of sexual harassment both alleged perpetrators denied having made them, although one accepted that the comments about the complainant’s dental related speech problems had been made and this was held by the investigator to have been ‘poorly judged’; a totally inadequate euphemism for what actually transpired.

In general, the investigation found that the complaints made by the complainant failed for the want of corroboration.

I repeat here a version of comments made in a recent Decision in which this issue of lack of corroboration also arose.

There is a two-step process in such an investigation. The first is to establish the facts of what happened.

While corroboration of such allegations will obviously add weight to them, the absence of corroboration is not necessarily determinative.

The investigator has a duty to evaluate the ‘evidence’ of the complainant and the other parties, and this obviously includes the credibility of the allegation and the credibility of any denial of it.

If the investigator is satisfied as to the veracity and credibility of the complaint, then they may on the basis of whatever submissions that have actually been made conclude that the complaint has been made out. This is especially the case if other circumstances related to the complaint support it (for example allegations of repeated conduct of the same nature).

Certainly, a simple (and predictable) denial by an alleged perpetrator, or a lack of independent corroboration should not be sufficient to determine that a complaint is not well founded. In this case, the comments Mr Kinsella alleged to have been made on October 14th were so outrageous it is doubtful that any person would own up to having made them and some weight should have been given to this by the investigator.

The investigator has a duty to make a decision in that regard and also to explain it. They may not simply abdicate responsibility to do so, simply and solely because there is no independent corroboration. Part of the duty of an investigator, or any decision maker, is to evaluate submissions in a situation where there is a conflict in the evidence, give due weight to a simple denial by an alleged perpetrator and explain their reasons for whatever conclusions they reached.

This is particularly the case given the obligations that fall on an employer to ensure a workplace free form this type of conduct.

Of course, it remains one of the options open to an investigator to say that they cannot reach a decision on the balance of probability; they may well decide to do so, but their reasons for doing so should be fully explained for reaching even that conclusion.

A decision not to bother doing so because there is no corroboration falls very far short of what is required.

The second step then becomes a lot simpler. In particular, sexual harassment involves, in two respects a subjective test.

The first is that the conduct be ‘unwanted’, which is a matter exclusively for the victim of the conduct to decide, and in this case there is no doubt that it was. The intention or motives of the alleged perpetrator are entirely irrelevant.

The other aspect of the test has two elements, that it has ‘the purpose or effect’ of violating the right to dignity at work, but the latter of these is sufficient to ground a complaint, i.e. again it is not necessary to establish the motivation of the perpetrator and the effect on the victim will suffice.

This creates a somewhat different context for an investigator than that which arises in other grievances, where facts are contested or, for example in bullying complaints where the legal tests are much more demanding.

That brings me to a decision on the various incidents.

In relation to the incident on October 14th, 2024, I conclude and find as follows.

The complainant gave detailed and credible evidence on oath of what was said to him on October 14th.

As already noted, it included a specific threat of serious sexual assault, as part of a generalised tirade against the complainant in respect of his speech problems. He also gave evidence of similar threats made by another person on January 18th.

As already noted, the subsequent, (excessively) lengthy workplace investigation concluded that in the absence of corroboration, and given the denial by the alleged perpetrators, it could not uphold the allegations.

I reach a different conclusion.

I find that the complainant has made out a good prima facie case on the basis of his credible sworn evidence that the alleged perpetrators in his complaint acted in a way which had the effect of violating his right to dignity in the workplace and of sexually harassing him.

The respondent chose not to have the alleged perpetrators attend the hearing to offer alternative or rebuttal evidence, which is its choice. It ought to have anticipated that the burden of proof on this matter might pass to it and that rebuttal evidence would be necessary.

The burden of proof having passed to it, the respondent has therefore failed to offer evidence to displace that burden.

Its responsibilities are well set out in its own ‘Personal Harassment Policy and Procedure’ and while its conclusions were reached after the complainant had left its employment, it is to be hoped that the comments above might assist in its processing of future allegations; a responsibility falls on it to be pro-active in this regard.

In summary, the complaint of discrimination on the age ground does not succeed, but the complaint of sexual harassment is upheld.

In making my award I take some account of the failure of the complainant to bring the allegations to the attention of the respondent in a timely way.

Complaint CA-703332-001 succeeds insofar as it relates to the complaint of sexual harassment, and I award the complainant €7,500.

Complaint CA-703332-001 succeeds insofar as it relates to the complaint of sexual harassment, and I award the complainant €7,500.

Employment equality,  sexual harassment.