Complainant

Respondent

Parties

Karen McVeeney

Belfort Capital Limited

Representatives

Setanta Solicitors

Did not attend the hearing

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00071780-001

22/05/2025

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

CA-00071780-002

22/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00071780-003

22/05/2025

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

CA-00071780-004

22/05/2025

The complainant was a member of the Energie Fitness gym in Citywest for a number of years before she started working there as a fitness instructor on September 1st 2024.  She worked for around 40 hours per week for which she was paid an hourly rate of €13.20.  She said that she was paid monthly, but she didn’t get payslips.  She provided evidence of her wages in the form of a bank statement which shows the transfer of funds from the respondent into her account.

The complainant claims that she was dismissed when she complained about the conduct of the manager of the gym.  This conduct included making sexual remarks about a gym member and shouting at the complainant in front of members.  Under the Unfair Dismissals Act 1977, the complainant claims that her dismissal arose from her making a protected disclosure about the conduct of the manager.  She complains that contrary to s.8 of the Employment Equality Act 1998, she was discriminated against on the ground of gender, when she was harassed by the gym manager.  In contravention of s.3 of the Terms of Employment (Information) Act 1994, she complains that she was not issued with a statement of her terms and conditions of employment until two weeks before she was dismissed.  Finally, she claims that she was penalised for raising a complaint about harassment.      

In advance of the hearing, Mr McCrave provided a submission setting out the chronology of the complainant’s experience from September 1st 2024 until she was dismissed 20 weeks later on February 17th 2025. 

The complainant said that she and three other gym instructors reported to the manager, Mr Chris O’Donoghue.  Mr O’Donoghue joined the business in or around August 2024, shortly before the complainant was recruited.  Mr O’Donoghue reported to Mr Dean Morelli, who the complainant knew from the time he was joined the company as an instructor in the Citywest gym in 2018, while she was a member.  He then became the manager.  Shortly afterwards, he was promoted to the role of area manager. 

The complainant said that in addition to working as an instructor, she spent about two hours every shift doing sales calls, responding to queries on the company’s website.  She said that she also cleaned the premises and the equipment and she did around two classes per shift.

The complainant had three probation reviews over Zoom with Mr Morelli.  The third meeting was held the week before she was dismissed.  She said that Mr Morelli was happy with her performance, and that he remarked that he liked the changes she had introduced and that her ideas had resulted in an increase in membership.  She said that her classes were popular and that some had a waiting list to join.

The complainant used a personal trainer in the gym and, at the staff party on December 7th 2024, she said that when she was speaking to her manager about her personal training, he made an innuendo that, in addition to fitness training, she received services of a sexual nature from her trainer.

On January 30th 2025, the complainant was on a day off and she went to the gym to train.  After the manager opened the door to let her in, she started training.  She said that the manager then approached her and shouted, “Have you got an issue with me?”  She said that his aggressive conduct was observed by the members who were present.  She said that she asked him if he wanted to have the conversation on the gym floor and she asked him to stop shouting.  He then left.

The complainant said that the manager made offensive remarks about a female member who was using the shower in the gym.  When she told him that such remarks could land him in trouble, the complainant said that he repeated the comment and directed his intentions to her.

On February 11th, the complainant said that she was working with a long-time member of the gym, discussing with him a problem he was having due to an old injury.  She said that the manager walked past twice while she was speaking to the member.  She said that he then approached her and put his arm around her shoulder and said that she wasn’t to spend so much time speaking to members.  He told her that he had timed her and that she had been speaking with the member for 20 minutes and that she wasn’t to spend more than five minutes talking to an individual member.  She said that this instruction wasn’t given to her three colleagues.

On February 13th, the complainant said that she told the manager that she’d like to put on a beginners’ step class because some members had indicated that they were interested in a class but didn’t want to appear inexperienced.  The manager responded that other people had ideas too and he said that he’d get back to her about the class.  She said that, during the conversation, she told the manager that his instruction to her not to speak to members for more than five minutes was ridiculous.  The complainant said that the manager got very angry, started shouting at her and then left the office.  He returned five minutes later and informed the complainant that he intended to issue her with a warning.  He didn’t indicate what the warning was for and the complainant said that she would raise the matter with management.  The complainant said that the manager left the office, slamming the door.  She said that she tried to contact the area manager on several occasions, to discuss the conduct of the manager, but he didn’t respond to her calls.

On February 17th, the complainant arrived at the gym to do a session with her personal trainer.  She said that one of her colleagues was in the office with the manager.  The manager told the instructor to leave and he told the complainant that he wanted to talk to her about her warning.  The complainant said that she called her colleague back to the office to be a witness.  She said that the manager laughed at her derisively.   

The manager read the warning to the complainant and pushed it towards her to sign.  She said that she replied that she had no problem signing it, but that she wanted to get advice first.  The manager then phoned the area manager and informed him that the complainant refused to sign the warning.  The complainant heard Mr Morelli telling Mr O’Donoghue to tell her to leave the premises and to take her keys from her.  The complainant said that she asked to speak to Mr Morelli, and that he said that if she refused to sign the warning, she is to leave.  She said that, shortly afterwards, she was removed from the staff WhatsApp group.  It is the complainant’s position that she was dismissed on February 17th 2025 of foot of concerns she raised about the conduct of her manager.

The Relevant Law

Section 6 of the Unfair Dismissals Act 1977 (“the 1977 Act”) was amended by the Protected Disclosures Act 2014 and provides that the dismissal of an employee shall be deemed to be an unfair dismissal if it arises from the employee having made a protected disclosure (s.6(2)(ba)).  The amendment also provides that an employee who claims that they have been dismissed for making a protected disclosure is not required to have completed 52 weeks of service (s.6(2A)). 

The definition of “protected disclosure” is set out at section 5(1) of the Protected Disclosures Act 2014, “the 2014 Act.”  

“For the purposes of this Act ‘protected disclosure’ means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and also, are not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provide that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

For our purpose therefore, a “protected disclosure” is the disclosure by an employee to his or her employer, or another person, of relevant information.  Section 5(2) of the 2014 Act provides that,

“information is ‘relevant information’ if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.”

The operative clause concerning whether information shows that a relevant wrongdoing has occurred, is occurring or will occur is “reasonable belief.”  Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”  In the Q & A material included as an appendix to the “Statutory Review of the Protected Disclosures Act 2014,” the reviewers note that,

“…all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.  This is a deliberately low threshold designed to ensure that most reports are made to the person best placed to correct the alleged wrongdoing – the employer.”

It is apparent that the Act intends that “relevant information” concerning an alleged wrongdoing is provided to the employer so that the wrongdoing can be addressed and, that the employee does not have to be convinced that a wrongdoing is occurring but that the lower threshold of reasonable belief applies. 

Section 5(3) of the Act lists the matters that are considered to be relevant wrongdoings:

The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

There are three components to the making out of a claim of penalisation under the Protected Disclosures Act:

1.  An employee must have a reasonable belief that a wrongdoing is occurring, has occurred or might occur;

2.  They must communicate what they know about the alleged wrongdoing to a prescribed person, their employer, a government minister, a legal advisor or another person;

3.  They must show that, because of their communication about the alleged wrongdoing, they have been penalised.

Did the Complainant Make a Protected Disclosure?

The complainant’s evidence is that, on an unknown date, her manager made a sexually offensive remark about a gym member and, when she remonstrated with him about this, he repeated the remark and directed his abuse at her.  On February 11th, the manager told the complainant not to spend so long speaking to individual gym members and, two days later, when she confronted him about this instruction, he told her that he was issuing her with a warning.  On February 17th, when she refused to sign the warning, she was dismissed.  She said that, before she was dismissed, she tried to contact the area manager by telephone to discuss the conduct of her manager, but he didn’t return her calls.

In his submission on behalf of the complainant, Mr McCrave referred to the decision of my colleague, Michael McNamee in A Worker and A Massage Therapy Business[1].  Issued in November 2023, Mr McNamee quoted from the judgement of the Supreme Court in Baranya v Rosderra Irish Meat Group Limited[2].  Here, Mr Justice Hogan remarked that “complaints made by employees that are entirely personal to themselves are nonetheless capable of being regarded as protected disclosures for the purposes of the 2014 Act.”  The complainant’s case is that her manager’s verbal sexual abuse is an infringement of her right to a safe place of work.  Referring to s.5(3)(d) of the 2014 Act concerning the possibility “that the health or safety of any individual has been, is being or is likely to be endangered,”Hogan J stated:

“It is perfectly clear from these words that the complaint does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit of the sub-section.  Nor does the conduct in question necessarily have to amount to a breach of any legal obligation (although it would generally probably do so): it is sufficient that the employee complains that his or her health or safety has been or is being or is likely to be endangered by reason of workplace practices, as this amounts to an allegation of “wrongdoing” on the part of the employer in the extended (and slightly artificial) sense in which that term has been used by s.5(2) and s.5(3) of the 2014 Act.  It follows that a complaint made by an employee that his or her own personal health was being affected by being required to work in a particular manner or in respect of a particular task can, in principle, amount to a protected disclosure.”

Considering this guidance, I am satisfied that the complainant had a reasonable belief that the conduct of her manager was wrong.  I am not satisfied however, that she carried out the second step of the process by communicating that wrongdoing to her employer.  At the hearing, the complainant said that, when her manager made the remark about the gym member and the shower, she told him that he could get into trouble for such remarks.  When she complained about his instructions not to speak to members for longer than five minutes, she said that he threatened her with a disciplinary sanction.

In their letter to the respondent on March 4th 2025, Setanta Solicitors stated,

Ms McVeeney raised several complaints about her treatment, treatment of gym members and lack of fair procedures.”

Based on the complainant’s evidence at the hearing however, I am not satisfied that she did in fact raise a complaint.  Although she told her line manager that he could get into trouble because of his conduct and, that his instruction about not speaking to members for more than five minutes was ridiculous, this is not the same as communicating about a wrongdoing to her employer. 

The complainant said that she tried to contact the area manager by telephone, but he didn’t pick up and he didn’t call her back.  She also said that she had her final review meeting with the area manager the week before she was dismissed, and that the meeting went well.  I find it difficult therefore, to understand why the complainant didn’t raise the conduct of her manager during her discussions with the area manager in the week before February 17th.  Making a phone call and not getting an answer is not sufficient to meet the requirement to communicate to her employer about the wrongdoing.  When the area manager didn’t respond to her phone calls, the complainant should have sent him an email or a letter, to outline what she had witnessed.

When she was dismissed on February 17th, the complainant still didn’t write to the area manager or anyone else in the company to report the wrongdoing.  The fact that she did not do so means that the wrongdoing went unreported.

Based on these findings, I am not satisfied that the complainant’s claim that she was dismissed for making a protected disclosure meets the second component of the three stage process outlined above.  I find therefore, that her complaint that she was dismissed for making a protected disclosure does not succeed.

CA-00071780-002:  Complaint of Sexual Harassment

This relevant legislation for adjudication of this complaint is section 14A of the Employment Equality Act 1998 (“the 1998 Act”), a new section inserted by the Equality Act 2004, specifically addressing the issue of harassment and sexual harassment at work.  Harassment is defined at defined at sub-section (7)(a)(i) and sexual harassment is specifically defined at sub-section (7)(a)(ii):

(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. 

The complainant’s evidence is that, at the company Christmas party on December 7th 2024, her manager made a sexually offensive remark to her about her personal trainer.  She claims also that he made an offensive remark on an unknown date when a gym member was having a problem with the door of a shower.  I am satisfied that the conduct she complains about falls within this definition, as the remarks were unwanted, they were a violation of her dignity and resulted in a humiliating working environment.

Discrimination

At section 14A(1) of the 1998 Act, harassment and sexual harassment are categorised as discriminatory conduct.  While harassment may discriminate against a person on one of the discriminatory grounds of age, disability, sexual orientation, race, membership of the traveller community, family status, civil status or religion, sexual harassment is discrimination against an individual on the single ground of gender.    

Establishing that Discrimination has Occurred

The Equality Act 2004 inserts a new section, 85A, into the 1998 Act.

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.

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred.  For the complainant to succeed in her complaint, the first hurdle she must overcome is to provide evidence that will lead me to assume that, based on the primary facts, as a female, she was treated in a manner that was intimidating, humiliating, offensive, hostile or degrading.

No one attended the hearing to reply to the complainant’s allegations, although I am satisfied that the respondent was properly on notice.  In the absence of any rebuttal evidence, I must accept the evidence of the complainant regarding the facts of what occurred.

As a couple of off-handed, sexual remarks, which some may consider to be trivial, it is important to examine the wording of section 14A of the 1998 Act, and the focus on unwanted conduct and its effect.  A concise summary of the objective of the law in relation to harassment is in the decision of the Labour Court in Nail Zone Limited and a Worker[3]:

“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 is apparent that the test for establishing if certain conduct constitutes sexual harassment is a subjective one and not based on the response of another reasonable person.  It is clear to me from the complainant’s evidence that the conduct she complained about had the effect of violating her dignity and creating a humiliating and offensive environment for her at her place of work.  Considering these findings, and taking account of the Nail Zone decision, I am satisfied that the remark made by the complainant’s manager was sexual harassment and that the complainant has shown that she was discriminated against on the ground of gender.

No one attended the hearing to represent the respondent and no evidence was submitted to show that they have a dignity at work policy or that the employees are trained in how to identify and deal with sexual harassment.  Having considered the evidence of the complainant, I am satisfied that she has established that she was discriminated against in the form of sexual harassment.  I find that the respondent did not rebut the inference of discrimination.

CA-00071780-004:  Penalisation for Making a Complaint about Sexual Harassment

Under this heading, the complainant claims that she was dismissed because she made a complaint about sexual harassment.  Based on her evidence, it is my view that she was dismissed when she resisted her manager’s effort to humiliate her by issuing her with a warning.  Although it is not clear, the warning may have been connected to the manager’s instructions to the complainant not to spend more than five minutes speaking to gym members.  I am satisfied that, while she remonstrated with her manager about his conduct, she did not complaint about him and her claim that she was penalised for making a complaint is not upheld.

The Relevant Law

Section 3 of the Terms of Employment (Information) Act 1994 Act provides that, within two months of the commencement of an employee’s employment, they should receive a written statement providing certain information regarding their terms and conditions of employment.  Such statements are generally issued in the form of a contract of employment.  Section 3 was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide particular information to employees within five days of their start date.

Information to be confirmed in writing to the employee within five days of commencement:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, the end date of the fixed-term;

(d)  The rate or method of calculation of wages and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e)  The daily and weekly hours that the employee is expected to work.

This remaining information is to be provided within two months of commencement:

(f)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(g)  The job title or the nature of the work that the employee is required to carry out;

(h)  The date that the employee commences in the job;

(i)  Details of any collective agreement which affects the employee’s terms and conditions of employment and information about where the employee can get a copy of any such agreement;

(j)  That the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of his or her average hourly rate of pay for any pay reference period as provided in that section;

(k)  The pay frequency, whether weekly or monthly or some other frequency;    

(l)  Any terms or conditions relating to hours of work (including overtime);

(m)  Any conditions relating to paid leave (other than paid sick leave);

(n)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(o)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of employment;

(p)  A reference to any collective agreements which directly affect the employee’s terms and conditions, including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

In his submission on behalf of the complainant, Mr McCrave said that the complainant received a copy of her contract of employment two weeks before she was dismissed on February 17th 2025.   A copy of this contract was not produced in evidence and I must assume therefore, that the document was acceptable and that it meets the requirements of sections (a) to (p) above, albeit that it was not provided until after two months of the commencement of the complainant’s employment.

Findings

Based on the uncontested evidence of the complainant, I am satisfied that, within five days of the commencement of her employment, the respondent failed to provide her with a statement as set out at section 3 of the 1994 Act.  I find also that she was not provided with a copy of a full statement of her terms and conditions until she was in the employment of the respondent for approximately 18 weeks.  Based on this conclusion, I find that there is substance to her complaint under the Terms of Employment (Information) Act 1994.

Having identified the breach of s.3 of the Terms of Employment (Information) Act, in accordance with section 7(2)(d), I am required to order the employer to pay compensation of “such an amount (if any) as is just and equitable, having regard to all the circumstances, but not exceeding 4 weeks’ remuneration…”  Taking account of the circumstances outlined by the complainant, it is my view that compensation equivalent to four weeks’ pay is just and equitable.   

CA-00071780-001:  Complaint under the Unfair Dismissals Act 1977

As I have concluded that the complainant did not make a complaint to her employer about the conduct of her manager, I decide that this complaint is not well founded.

CA-00071780-002:  Complaint under the Employment Equality Act 1998

I am satisfied that the complainant was sexually harassed by her manager’s offensive remarks and that, as a result, she was discriminated against on the gender ground.  I decide therefore, that this complaint is well founded and I direct the respondent to pay the complainant compensation of €5,500, equivalent to approximately 10 weeks’ pay.

CA-00071780-003:  Complaint under the Terms of Employment (Information) Act 1994

Based on the failure of the respondent to issue the complainant with a statement of her terms and condition of employment until she was in their employment for 18 weeks, I decide that this complaint is well founded.  I direct the respondent to pay the complainant compensation of €2,112, equivalent to four weeks’ pay.

CA-00071780-004:  Complaint under the Employment Equality Act 1998

Similar to the complaint under the Unfair Dismissals Act above, because I have concluded that the complainant did not make a complaint to her employer about the conduct of her manager, I decide that this complaint of penalisation for making a complaint is not well founded.

Summary of Redress Awarded

Based on my decision that two of the complaints listed above are well founded, in total, I direct the respondent to pay the complainant redress of €7,612.  As this compensation is for breaches of statutory rights, it is not subject to deductions for tax, PRSI or USC.

Sexual harassment, verbal abuse, statement of terms and condition of employment, protected disclosure, penalisation