Complainant

Respondent

Parties

Mohamed  Boudouaou

Transdev Dublin Light Rail Ltd

Representatives

Self-Represented

Loughlin Deegan of Byrne Wallace

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-00071532-001

13/05/2025

The issue in contention was a complaint under the Employment Equality Act,1998, of Discrimination on Gender, Religion, Race, Victimisation and Harassment Grounds. A principal element was the alleged failure of the Respondent to respond in a timely manner to a complaint filed with it on the 16th January 2025.

The Complainant is an Authorised Officer / Revenue Protection Officer on the LUAS Transport System. The employment began on the 4th March 2024 and continues.

The rate of pay was stated by the Complainant to have been €1,500 Gross per fortnight for a 40-hour week.

The Complainant was self-Represented and gave an Oral testimony. He submitted a detailed Written Statement.

The incidents that underly this complaint started in late 2024 and early 2025. The Complainant alleged that he was being harassed/victimised by another colleague, fellow worker, Mr JD. The Complainant stated that Mr JD was being verbally abusive, physically threatening, insulting to the Islamic Faith and making unfounded allegations regarding the sexual orientation of the Complainant. A formal complaint in relation to these matters was made to Respondent Managers on the 16th January 2025. An investigation by the Respondent was commenced on or about the 20th January 2025.

The Complainant alleged that the results of this Investigation were never properly communicated with him until much later in the Year.

A Compliant on this heading was made to the WRC on the 13th May 2025. However, Mr JD made a “counter” complaint on the 16th February 2025. This was never disclosed to the Complainant until late May 2025.

The Complainant argued forcefully that the tardiness /delays of the Respondent in properly following up the initial Complaint of the 16th January 2025 allowed the situation to “fester” with Mr JD. Repeated incidents occurred, inappropriate text messages etc were sent and there were verbal altercations between the Parties on LUAS Platforms. This amounted to what could only be described as a Respondent “sanctioned” pattern of Harassment and Victimisation of the Complainant.

The Respondent was represented by Mr Deegan, accompanied by Respondent Managers and supported by a detailed Written Submission.

2:1       General discussion

In essence the Respondent argued that they were a large employer and had detailed Policies on Equality and Dignity at Work. These were submitted as evidence. The Complaint of Harassment by the Complainant was received on the 16th January 2025. An investigation was immediately undertaken (20th January 2025.)  All Parties were interviewed. Following the Investigation, Mr JD was referred for a Disciplinary Hearing. This took place on the 14th February 2025 and resulted in a serious Disciplinary Sanction for Mr JD. This was issued in late February 2025.

The “Counter” complaint from Mr JD (received on the 16th February) was also investigated. It was deemed to be unwarranted and dismissed.

On the 9th March 2025 the Complainant asked Manager, Mr S, for an update on the initial complaint. Regrettably this was never formally answered. The WRC Reference was on the 13th May 2025.

The Complainant was informed (18th June 2025) that the Counter complaint was not substantiated.

The Respondent argued that all reasonable steps had been taken to investigate the complaint of the 16th January 2025. Matters had got complicated by the need to follow up on the “Counter” complaint of the 16th February 2025. However, the investigation/disciplinary process had resulted in Mr JD receiving a formal Written Warning to stay on his file for a period of 12 months.

The Complainant had been reassured in late May that the matters in his Complaint had been satisfactorily addressed. There could be no doubt that Mr JD had been given a severe sanction for his actions towards the Complainant.

2:2      “Vicarious” Liability Defence.

On a Legal standpoint the Respondent advanced Section 14A (2) of the Employment Equality Act, 1998 as a proper defence to the allegations. The Section is quoted below.

Harassment and sexual harassment.

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) 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

(Underling by the Adjudication Officer.)

This provision is known colloquially as the “Vicarious Liability” defence. In other words, an Employer who does everything reasonably possible to properly investigate a Complaint and takes such steps as are practicable to prevent a recurrence/reverse its effects cannot be held liable for the Discrimination/Harassment. In this case a proper Investigation took place followed by a severe Disciplinary sanction against the alleged Perpetrator, Mr JD.

Accordingly, no liability can now attach to the Respondent.

2:3       The Burden of Proof argument.

The Complaints of Discrimination on the Race and Religion Grounds and the complaint of Victimisation & Harassment were referred to by the Respondent. The provisions of Employment Equality Act,1998 Section 85A - Burden Of Proof were referenced. In essence and supported by case law (Southern Health Board v Mitchell 2001 ELR 201 and Valpeters v Melbury (2010) ELR 6640) the Respondentargued that the Burden of Proof had not been satisfied. A Prima Facie case had not been established sufficient to satisfy the requirements of the Act. No substantial strong evidence had been advanced to justify the Religion and Race allegations.

The only possibility was the Harassment complaint, and the actions of Mr JD were accepted as Harassment.

However, the Respondent had dealt with these quickly and efficiently. Mr JD had received a severe sanction.

2:4         Summary Respondent position

Section 14 A (1), as quoted above applies – the Respondent had done everything reasonably practical to address the issues. Accordingly, no liability now applies to them.

3:1       Legislative Provisions

The guiding piece of Legislation here is the Employment Equality Act,1998 and Section 14A (1) which is quoted above. The facts and the evidence presented both in Oral Testimony (given under Oath/Affirmation) and Written materials indicate that the Respondent satisfied Section 14A (1).

(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

Accordingly, the complaint has to be deemed legally Not Well Founded and has to be deemed to have failed.

(As an aside and not part of the Adjudication Finding the unfortunate delays in keeping the Complainant fully informed, throughout the process, should be reflected upon by the Respondent)

Employment Equality Act, Vicarious Liability defence.