Complainant

Respondent

Parties

Richardson  Reboucas

Smiths Supervalu

Representatives

Self

Self

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-00073835-001

28/07/2025

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

CA-00073835-002

28/07/2025

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00073835-003

28/07/2025

The Complainant alleges discrimination on the grounds of his sexual orientation together with victimisation and penalisation. The Respondent contests all three claims.

Richardson  Reboucas took the Affirmation and gave his evidence as follows:

The discrimination started when the Complainant made the first complaint about another employee. That employee, Adam King, said homophobic comments about him, he used the word “Faggot”. After he filed the complaint, he continued making requests so that the company would take the complaint seriously. The company did carry out an investigation and found that the homophobic comments had been made. However, they did nothing. That employee got away with it. After that the Complainant requested the final report of the investigation. He asked Mr Hoare for it several times. He had to go to the gardai about the issue. The company asked him to withdraw his complaint with the gardai and only if he did would he get the report.  Eventually he got it, but it took one month. There was a long delay in getting it and he is of the opinion that the delay was on purpose in the hope that they wouldn’t have to deal with it. When he got the report, it was too late to appeal.

Following on from that the Complainant became the subject of a complaint himself.  Employee A, another employee made the complaint about the Complainant’s sexual misconduct during the Christmas party.  He alleged that he touched his torso inappropriately. The alleged incident occurred  several months’ prior to him actually making the complaint. A new investigation was launched and in line with company policy the Complainant invited by the company him to protect himself against the allegations. He said that he was “ready for it”. He felt that this was just the company’s way of putting obstacles in the way of his complaint. He was cooperative but he requested proof of the alleged sexual misconduct. It was so different to the allegation that he had made. He had proof, times dates etc. The company never provided him with proof of his alleged misconduct other than the statement of the employee who made the complaint.  He was emailing constantly at that stage trying to get the investigation report in relation to the Employee B complaint against him. He had to wait for a long time to get it. Delay tactics. He lost trust in the process completely.  He did however agreed to participate in the investigation in relation to the Employee A complaint against him.

He had an investigation meeting with Mr. Hoare and Ms. Gordova the accounts manager. The meeting was recorded. The Respondent allowed him to do that. He set out his account of the events that of night. They showed him comments made by other employees about alleged misconduct but said that they found nothing untoward in relation to the Employee A complaint. Also, during that meeting he spoke about the Christmas party and that he openly discussed his sexuality with other employees. At the party, the staff he was talking to started to ask him questions that were designed to make him feel uncomfortable or ashamed of his sexuality. They asked him about is favourite sexual position and what it was like to be gay and things like that.  He felt very uncomfortable. At the meeting he discussed that. However, he did not make a formal compliant about that. The following day he was on annual leave and travelled to Brazil. He was away for three weeks.  He eventually got the report, 53 days after the investigation.

During the investigation he told them that he was going to submit a claim to the WRC. The company invited him to another meeting to give him the report. He asked if he could record it. Ms Gordova gave him the investigation report, she was rude and said the filming of meetings was forbidden. After that he sent to her an email explaining everything that had happened to date and setting out all of the things that had been said and done to him. That was ignored. He emailed Ms Mc Quail.  She did reply promptly.  He thought that everything was done confidentially but it seemed at everyone knew about everything. It is a family company and everyone knows everyone.  On 19th August Ms Mc Quail in her reply stated that nobody wanted to retaliate against him. He did not accept that.

The Complaint’s mental health was suffering as a result of all of this. He did seek medical attention. He was certified unfit for work for five days and was given anti -anxiety medication. It was a very stressful time.

From the moment he spoke up, he started to feel penalised. He usually worked in groups of two, but he was left to work on his own, so he couldn’t take breaks of go to the bathroom. They cut his hours too and cancelled a course he was due to go on.

In relation to the protected disclosure, the went to the gardai and he made a complaint about the hostile environment in was forced to work in, the threats and homophobic comments.

Raymond Hoare took the  Affirmation ad gave his evidence as follows:

On the 14 December there was a Christmas party. The Complainant attended it. His recollection of the party and the recollection of three other employees are very different. There statements were given to the complaint. On the 6th   April   Employee A, an employee made a formal complaint against the complaint for sexual harassment. He allegedly inappropriately touched his chest, invited him to nightclubs after the party and made inappropriate sexual comments directly to him. Employee A’s  parents actually came into the store to discuss the matter. He 4 days later the complaint made a complaint against Employee B. On the 13th May the Complainant s complaint against Employee B was closed. Employee B left the company. There was 10 working days from start to finish. The complaint was upheld. There was no disciplinary process because he had resigned.

The Complainant was allowed to record the meetings. However, Ms. Gordova, in one of the meetings said she was objecting to the recording. The Complainant accepted that and continued in the meeting.

The Respondent denies that there was any breach of confidentially.

On every occasion when an allegation was made either by or against him the Complainant was afforded the opportunity to represent himself and to say anything he needed to in relation to the subject matter.

His average hours were 33 hours per week for the entirety of the year. There are busy times and quiet times. There are weeks where he would work in excess of 39 hours and weeks but when it is quiet he would work less.

He was never left alone. There are approximately 55 people on the floor and if someone needs a break etc all they have to do is ask a colleague to cover for them. There is no formal policy in relation to that it is just what everyone does. The Complainant was fully aware of this.

The social media course was cancelled, for everyone. It had nothing to do with the subject matter of this complaint.

There was a compactor issue. The compactor is an expensive piece of equipment. It costs approximately €40,000.00. He was seen forcing large pieces of plastic into it. He was asked to stop because it would break the machine. It is not designed to compact plastic, only cardboard.  When he was asked to stop, he became very aggressive and started shouting. He shouted at Ms Mc Quail “go on, fire me”. This all played out in front of a group of neurodivergent kids who were in the store. He was asked to go home to calm down. The Respondent now believes that he was setting up his claim.

When the Complainant tendered his resignation, he was asked to stay. He was really good with the customers, and they liked him. The company owner actually contacted him personally and asked him to stay but he declined.

On the 1st August a letter was sent to the Complainant. In that letter the company offered him assistance with his mental health issues, EAP and counselling. 

I have considered all of the oral and documentary evidence presented.

Individuals who are not a party to the within proceedings but who form part of complaints outlined in the evidence have been identified in the decision as Employee A and Employee B. The subject of the complaints was of a sexual nature and the person/s involved may or may not have been aware that the complaint formed part of the evidence in the Complainant’s case therefore in the circumstances it is appropriate not to disclose their identities in this decision.

The Complainant gave general evidence in relation to all three claims. There was significant overlap of the evidence in relation to each of the claims. It is for that reason that in the decision below there is an overlap of the evidence in relation to each of the individual claims.

Background:

The Complainant was employed by the Respondent in a retail environment. He is a gay man. In the course of his employment he made a complaint that a colleague, referred to in this decision as Employee B, had used a homophobic slur about him. The Respondent investigated that complaint and upheld it. Employee B resigned before any disciplinary process could be concluded.

Separately, Employee A made a complaint alleging that the Complainant had engaged in inappropriate touching and made inappropriate comments at a staff Christmas party. The Respondent investigated that complaint. The Complainant maintained that the allegation against him was retaliatory and that the Respondent’s handling of the various processes was discriminatory and designed to obstruct him.

The Complainant also alleged that, after speaking up, he was isolated at work, had his hours reduced, lost the opportunity to attend a course and was otherwise subjected to adverse treatment. He relied on a report he made to An Garda Síochána concerning what he described as threats, homophobic comments and a hostile working environment as a protected disclosure.

The Respondent denied discrimination, victimisation and penalisation. It maintained that it investigated the complaints made by and against the Complainant, that variations in hours reflected business requirements, that the course was cancelled for everyone, that the Complainant was not required to work alone and that the workplace events relied upon were unrelated to any protected act or protected disclosure.

Applicable Law:

Section 85A of the Employment Equality Acts provides that, where facts are established from which discrimination may be presumed, the burden passes to the Respondent to prove the contrary. The initial burden is on the Complainant to establish primary facts of sufficient significance to raise that inference. Mere assertion, without supporting facts, is insufficient.

Victimisation for the purpose of section 74(2) of the Employment Equality Acts requires a dismissal or other adverse treatment caused by the employee having undertaken one of the protected acts identified in that section, including making a complaint of discrimination or opposing an act unlawful under the Acts.

For the purposes of the Protected Disclosures Act 2014, a protected disclosure must be a disclosure of relevant information which, in the reasonable belief of the reporting person, tends to show one or more relevant wrongdoings and came to that person’s attention in a work-related context. A grievance concerning an interpersonal conflict affecting the reporting person exclusively is not, without more, a relevant wrongdoing.

The complaint concerning Employee B:

It is common case that Employee B used homophobic language and that the Complainant complained about it. The Respondent investigated the complaint, completed that investigation within ten working days and upheld it. The evidence was that Employee B had resigned before the Respondent could conclude the matter. I accept the Respondent’s evidence that no disciplinary sanction could thereafter be imposed on a person who was no longer its employee.

The fact that the Complainant’s complaint was upheld does not, without more, establish that the Respondent discriminated against him. The evidence shows that the Respondent received, investigated and upheld the complaint. The Complainant was dissatisfied with the time taken to furnish the report and believed that the delay was deliberate and caused him to lose an appeal opportunity. However, no evidence was produced establishing that the delay occurred because of his sexual orientation or that a person in comparable circumstances was or would have been treated more favourably. Furthermore I am satisfied that the evidence establishes that the Respondent conditioned release of the report upon withdrawal of a Garda complaint. The parties’ accounts differed on this point, and the Complainant did not produce sufficiently cogent evidence to discharge the initial burden in respect of that allegation.

The complaint made by Employee A:

The Complainant stated that the complained was not made for several months after the alleged incident. Based on the evidence I find that that is correct.  However, the fact that Employee A complained several months after the Christmas party does not establish that the complaint was fabricated, that the Respondent procured it or that the Respondent opened the investigation for a discriminatory or retaliatory purpose. Employee A was entitled to make a complaint and the Respondent was entitled, and indeed obliged, to investigate it fairly.

The Complainant was informed of the substance of the allegations, participated in an investigation meeting, was permitted to give his account and was allowed to record at least part of the process. The Respondent was entitled to place witness statements or accounts before him; it was not required to produce independent proof before investigating an allegation. The evidence before me does not establish that the investigation itself constituted less favourable treatment on the sexual-orientation ground.

At the investigation meeting, the Complainant described intrusive questions asked by colleagues at the Christmas party concerning his sexuality and sex life. He accepted that he did not make a formal complaint about those matters. On the evidence before me, I am not satisfied that the Respondent failed to act upon a clearly formulated complaint which it understood, or ought reasonably to have understood, required a separate investigation.

The Complainant criticised the time taken to receive the report relating to the complaint against him. Delay may properly cause frustration, but delay alone does not establish discrimination or victimisation. No facts were proved from which I could infer that the timing was because of the Complainant’s sexual orientation or because he had done a protected act.

Alleged adverse treatment:

The Complainant said that, after he complained, he was required to work alone and consequently could not take breaks or use the bathroom. The Respondent’s evidence was that approximately 55 staff worked on the floor and that an employee needing a break could ask a colleague for cover. No rosters, contemporaneous complaints, witness evidence or other records were produced which established that the Complainant was deliberately isolated or denied breaks. I prefer the Respondent’s evidence on this issue.

The Complainant also alleged that his hours were reduced. The Respondent produced evidence that his hours varied with business demand and averaged approximately 33 hours per week across the year. The Complainant did not identify a reliable pre-complaint and post-complaint comparison, or a comparator whose hours were treated differently in materially similar circumstances. I am not satisfied that a reduction attributable to a protected ground or protected act was established.

I accept the Respondent’s evidence that the proposed social-media course was cancelled for all participants. There is no evidential basis for finding that its cancellation constituted individual adverse treatment of the Complainant.

The incident concerning the cardboard compactor arose from a direction about the use of the machine and the Complainant’s reaction to that direction. The Respondent’s account that he was asked to go home to calm down was not shown to be a contrivance or a response to an equality complaint or protected disclosure. The Respondent’s assertion that the Complainant was “setting up” a claim is speculative and I place no weight upon it. That speculation, however, does not prove the Complainant’s complaints.

I accept that the Complainant experienced considerable distress and sought medical treatment. I do not doubt that these events were upsetting for him. Medical evidence of distress, however, does not establish the statutory cause of that distress or prove discrimination, victimisation or penalisation.

Based on the evidence adduced during the hearing I make the following findings:

CA-00073835-001 — Employment Equality Acts 1998–2015

The Complainant has not established primary facts from which discrimination on the ground of sexual orientation, including discriminatory treatment in the Respondent’s handling of the workplace complaints, may be presumed. The Respondent investigated and upheld the complaint concerning homophobic language, and the alleged delays and other treatment were not shown to be connected to the Complainant’s sexual orientation.

Pursuant to section 79(6) of the Employment Equality Acts 1998–2015, I find that this complaint is not well founded and accordingly fails.

CA-00073835-002 — Employment Equality Acts 1998–2015

The Complainant undertook a protected act when he complained of homophobic treatment. However, he has not established that the subsequent investigation, allocation of work, variation in hours, cancellation of the course, compactor incident or any delay in providing reports was caused solely or mainly by that protected act. The Respondent provided credible, non-retaliatory explanations for the matters proved in evidence, and the asserted causal connection was not established.

Pursuant to section 79(6) of the Employment Equality Acts 1998–2015, I find that the complaint of victimisation is not well founded and accordingly fails.

CA-00073835-003 — Protected Disclosures Act 2014

The Complainant relied on his report to An Garda Síochána concerning the hostile environment, threats and homophobic comments at work. The evidence did not identify with sufficient precision the information disclosed, when it was disclosed, the relevant wrongdoing said to be revealed, or the basis upon which the Complainant reasonably believed that the information tended to show such wrongdoing. To the extent that the report concerned the Complainant’s own interpersonal workplace grievance, it did not, without evidence of a relevant wrongdoing extending beyond that grievance, satisfy the statutory definition.

Even if the report were assumed in the Complainant’s favour to constitute a protected disclosure, the evidence does not establish that the Respondent subjected him to penalisation because of it. The alleged reduction in hours, isolation and loss of training were not proved as acts of penalisation, and the Respondent gave credible operational explanations for the matters that did occur. The necessary causal connection is absent.

In accordance with Schedule 2 to the Protected Disclosures Act 2014, I find that this complaint is not well founded and accordingly fails.

CA-00073835-001 The complaint fails.

CA-00073835-002 The complaint fails.

CA – 00073835 -003 The complaint fails.

Discrimination. Victimisation. Penalisation. Sexual orientation. Investigation. Delay. Protected Disclosure.