Complainant

Respondent

Anonymised Parties

A Female Employee

A Café & Restaurant

Representatives

Mark Stafford Stafford & Company

Brady Mc Greevy Solicitors, Gerry Mc Greevy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005171-001

13/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005171-003

13/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005171-004

13/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005171-005

13/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005171-006

13/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005171-007

13/06/2016

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

CA-00005171-008

13/06/2016

CA – 5171 – 005

Complainant’s submissions:

The complainant commenced her employment as a trainee chef in August, 2015. Her normal hours of work were 2pm to 10pm, however, she rarely finished before 11pm. During her trainee period she did eat her lunch in the restaurant. There were no allocated times to do so. She would take a break whenever there was quiet period in the kitchen. After she completed her training she would rarely get time to have a break. She ate her lunch on the job. She did go out to the back of the restaurant for a cigarette break whenever she could. When she asked the respondent if she could regularise her break times she was told ‘ We don’t do breaks here’

Respondent’s Submissions:

The head chef ( hereinafter referred to a Y) stated that most people took their breaks when and if time allowed it. He knew the complainant took breaks but had no idea when or for how long. The respondent does not keep records in relation to breaks and therefore he wasn’t in a position to state when or for how long the complainant was afforded rest periods. At some point the respondent did request that employees clock in and out during breaks because their records were needed to assess their pay. The clock in/out system is used in conjunction with the pay calculation system. The complainant did not comply with the request. She was never disciplined in relation to that.

CA 5171-008 Discrimination.

Complainant’s submissions:

When the complainant started at the respondent café & restaurant, she was introduced to X who was referred to as the ‘Italian Stallion’. He was actually Romanian. She found that description to be very sexual but she ignored it. X from the outset said inappropriate things of a sexual nature to her. One day when she returned from a bathroom break he said “have you been to the toilet?” The complainant said “yes” . He said “So you got to touch your pussy, I would love to be the man who gets to touch your pussy”

A few weeks later he followed her into the walk-in freezer, trapped her by blocking the door and he tried to kiss her against her will. She struggled and managed to get away from him and out of the freezer.

Regularly, when he walked passed her, he would rub his genitals off her bottom and would smell her hair. He made comments about her body, her bottom and her hair daily. He told her that he loved her and would leave his wife and family for her. Following that he tried to open her bra.

On another occasion whilst the complainant was in the changing area putting on her shoes, he came in, grabbed her and bite her neck whilst pulling at her clothing. She struggled to get away from him. She was frightened and concerned that something very serious was going to happen to her. The very next day when she was outside having a cigarette he followed her out, pushed her up against the bins and tried to kiss her neck again. She stated that the matter had escalated out of her control and she feared for her safety. She had spoken to Y about several of the incidents but she felt that he wasn’t taking the matter seriously, possibly because he was a friend of the X and because she was the only female in the kitchen. When she reported the matter to Y, he told her that he had spoken to X and promised her it wouldn’t happen again. Nothing changed, save for him getting annoyed with her for reporting it. She decided to go to the owner /director (hereinafter referred to a Z), to report the matter as she was unhappy about the outcome from her previous complaints. He listened to her complaints and then sent her back out to work in the kitchen with X. He told her that she was being placed on supervision. She didn’t know what that meant but assumed that it was for her protection.

On the 29h March the complainant was asked to sign the minutes of the meeting she had with Z on the 26th. She signed them without reading them as she just wanted to get away from it all. She notes that the words “in jest“ have been added to the end of two of her complaints. Z admitted when questioned that he had added that to the statement and the complainant had not said it. Furthermore, the final two points did not form part of the meeting on the 26th, the respondent stated that he discussed that with the complainant on the 29th and then when up to the office to add them to the notes. The complainant stated that that never happened.   X was then placed on one week’s leave so that there could be an investigation. There was no investigation. Nobody came to talk to the complainant in relation to the investigation. When he was due to come back the complainant got very anxious as she was afraid of X and what he might do to her. On the 6th April she went to talk to Z but he dismissed her concerns and sent her back out to work. Then she said that she had spoken to her parents and to a lawyer and she was told that she shouldn’t have to work with someone who behaved in such a manner. Sometime later that day Z told her that he had fired X. She found out sometime later that he hadn’t been fired but had moved to the sister restaurant. Z told her to “let it go and don’t hold a grudge”

Almost immediately after that the complainant noticed a change in attitude towards her. If she had to squeeze past someone in the kitchen they would comment to the others “oh be careful there, she might report you”. Comments like that were made regularly. Y was also angry with her and she assumed it was because his friend had been moved to another restaurant, because of her. She found it extremely difficult to work in this environment. She felt isolated because she was the only female. On the 14.05.2016 around the lunch time rush she moved a pot of potatoes off the stove down to the bottom of the kitchen. Y then asked who had placed the pot at the bottom of the kitchen. She said that she had done it. He told her to “move the fucking pot”. When she said, she was too busy he proceeded to shout and swear at her. She burst into tears and left. That incident was the straw that broke the camel’s back. She sent a text to Z explaining that she wasn’t feeling well and that she was going to go to the doctor. He said that she was rostered the next day and would have to come in. She told him that she would get a doctor’s note and submit it. The certificate stated “stress” and was dated 17.05.2017 and covered the period 15.05.2016 to 28.05.2016. The complainant handed it in, in or around the 17th. On the 19th May the complainant received a formal letter from Z asking if she was well enough to attend to discuss her work and the issues she was having. It stated “As you can appreciate, I will still need to address the matter of you walking out on shift and sickness reporting”. This letter only served to exacerbate the complainant’s stress. Five days after the complainant when on sick leave she noticed a post containing a photograph on X’s Facebook page. The photograph was of a sign, situated in the respondent’s restaurant kitchen, stating “ Welcome back X…we missed you”   She was horrified. She felt like nobody was taking her issue seriously. She dealt with the matter in line with the respondent’s grievance procedure but nothing really was done about it.

The complainant has developed an ulcer due to the stress she was under. She resigned her position in August.

She applied for a job in another restaurant but only lasted a short time there. She was having panic attacks when she had to go into the kitchen area. She decided to get out of the industry altogether. She now works in the equestrian industry having started a new role in June, 2017. She earns slightly more now than she did with the respondent.

Respondent’s submissions:

Y stated that he has been employed by the respondent for a period of four years. He is the head chef. He was responsible for training the complainant. He denied introducing the X to the complainant as the ‘Italian Stallion’. He stated that the complainant came to talk to him on two occasions about X’s behaviour. The first time she complained about him trying to open/snap her bra strap. The second time was when he tried to bite her on the neck. He didn’t consider the declaration of love report as a complaint. He couldn’t remember the details of the complaints. He didn’t know if the complainant said he had pulled at her bra or tried to open her bra. He couldn’t remember the details of the neck biting incident, where it had taken place or what exactly the complainant had said to him in relation to it. He did say that X shouldn’t be behaving in this way and that he would talk to him about it. He did not report the complaints to Z .

He stated that there was a very jovial atmosphere in the kitchen and staff member often made comments about each other’s appearance. The complainant’s hair of the subject of many of their comments.

He was present at the meeting on the 26th. He did not give his statement until the 11.04.16 because he wasn’t asked for it. In his statement, he makes reference to only one of the complaints, the bra strap complaint.

He denied that he was annoyed with the complainant for reporting X. He stated that when X left it did put them all under more pressure because they were down one member of the time. That in of itself caused problems but he didn’t blame the complainant for it.

Z is the owner/ director of the café & restaurant. His office is located beside the kitchen. He has an open-door policy. The 26.03.2016 was the first he had heard of the complainant’s complaints. She came into his office and they spoke for about 30 minutes. He was quite taken aback by the seriousness of the complaints.   Following that meeting he typed up the notes. He met again with the complainant on the 29th. He added two additional points to his notes of the 26th and asked the complainant to sign them.   His assessed the complainant and concluded that she was very uncomfortable with the situation. He felt that he needed to assess just how uncomfortable she was and whether, or not she could continue to work with X. Based on how uncomfortable he assessed her to be would determine whether he would treat the matter formally or informally.

He then when to talk to Y. He asked Y to keep an eye on the complainant and to ensure that she and X were not rostered together after that. He wanted to X to finish his shift on the 26th so that he could talk to him to find out exactly what was going on. He didn’t get to talk to him that day. He did allow them to work out their shift together on the 26th. On the Saturday, he also allowed an overlap of their shifts, albeit for just two hours because they were so busy and he couldn’t manipulate the roster enough to ensure they were kept apart.  

He spoke with X on the 30th. He admitted the allegations. It wasn’t until the complainant came to see him again on the 6th April that he decided that the matter would have to formalised. His sister in law was asked to investigate the matter. She took a statement from Y on the 11th April. It contained only one of the complainant’s complaints to him. She and her husband (who is also involved in the business) met with X on the 12th April. Z was at that meeting too. At that meeting the X admitted the allegations. He asked if he could be moved to the sister restaurant. Z stated in evidence that he had to consider, whether, or not he could move him over. In the meeting notes it states that he said the move would not be possible. Z told him that he could apply to the manager of the sister restaurant if he wished to do so. He did apply and did secure employment there. He is now back working at the respondent restaurant.

The respondent conceded that it did not have a policy to deal with harassment and sexual harassment in the work place.

ADJ 3616- CA 5171-005 Organisation of Working Time Act, 1997

S12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

S25- (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

I find based on the evidence adduced by the parties that the respondent has failed its legal obligation to keep records pursuant to Section 25(1) and therefore is not in a position to state whether the complainant was given her breaks pursuant to Section 12 (1) and (2) of the Act.

I find that the complainant’s complaint ADJ 3636 – CA 5171-005 succeeds.

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ADJ 3636- CA 5717 008. Sexual harassment on the grounds of gender and victimisation.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Section 82 of the Act. In reaching my decisions, I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.　

Section 6 (1) of the Employment Equality Act, 1998 provides:　

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) (a)of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender.

Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”　

In Graham Anthony and Co Ltd v Mary Margetts, EDA 038, the Labour Court remarked:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

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.

(3) A person ’ s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

(4) The reference in subsection (1)(a)(iii)   to a client, customer or other business contact of the victim ’ s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section ‘ employee ’ includes an individual who is —

(a   ) seeking or using any service provided by an employment agency, and

( b   ) participating in any course or facility referred to in paragraphs (a)   to   (c)   of section 12(1) ,

and accordingly any reference to the individual ’ s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where   subsection (5)   applies in relation to a victim, subsection (1) shall have effect as if for ‘ in relation to the victim ’ s conditions of employment ’ there were substituted ‘ contrary to section 11   ’ or, as the case may be,   section 12 .

(7) ( 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.

Harassment based on the nine statutory grounds is a form of discrimination in relation to conditions of employment. The Employment Equality Acts 1998-2015 define harassment as “unwanted conduct” which is related to any of the 9 discriminatory grounds above. Sexual harassment is any form of “unwanted verbal, non-verbal or physical conduct of a sexual nature”. In both cases, it is defined as 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” and it is prohibited under the Acts.

The “unwanted conduct” includes spoken words, gestures or the production and display of written words, pictures and other material. This includes offensive gestures or facial expressions, unwelcome and offensive calendars, screen-savers, e-mails and any other offensive material.

15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

Victimisation

Section 74 (2) provides:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)     A complaint of discrimination made by the employee to the employer,

(b)     Any proceedings by a complainant

(c)     An employee having represented or otherwise supported a complainant,

(d)     The work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e)     An employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f)       An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or

(g)     An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In EDA1017 Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74 (2) of the Acts to be made out.   The Court stated that

1.The Complainant must have taken action of a type referred to at paragraphs (a) to (g) of section 74 (2) – a “protected act”,

2.The Complainant must be subjected to adverse treatment by his/her employer and

3.The adverse treatment must be in reaction to the protected act having been taken by the Complainant.

The complainant stated that she was continually subjected to unwanted verbal and physical behaviour of a sexual nature whilst employed by the respondent. X who was senior to the complainant in both age and rank, subjected her to a campaign of relentless lewd comments and highly inappropriate physical contact which arguably could be a matter for another forum. The complainant felt vulnerable in that she was the only female in the kitchen and was very inexperienced in a workplace environment. X took complete advantage of the situation when he acted in a seriously inappropriate manner towards the complainant. The behaviour commenced almost immediately. On day two of her employment he said to her when she returned from the bathroom “so you got to touch your pussy, I would love to be the man who gets to touch your pussy”. It quickly progressed to highly inappropriate physical behaviour, biting the complainants neck, pulling at her clothing, opening her bra, trapping her in the freezer in an attempt to kiss her, rubbing his genitals against her bottom and smelling her hair.

The complainant put up with the behaviour for some time because she was new to the respondent’s kitchen and because she didn’t want to make trouble. When it became apparent that it wasn’t going to stop, she correctly invoked the grievance procedure and reported the matter to her manager Y. Her evidence that she reported six or seven of the incidents to Y was credible evidence and was corroborated by times, facts and detail. Y’s evidence that she only mentioned two incidents (that he deemed to be a complaint) and that he couldn’t remember the details of those two complaints is not credible. I find that Y’s first priority was to protect his friend, X

It is abundantly clear both from his evidence and from the statement he made on the 11th April, 2016 which was seriously lacking in content, that he didn’t take the complaints seriously. He dismissed them as nothing more than “banter”, stating that the atmosphere was jovial in the kitchen and it was nothing more than boys being boys. He was the complainant’s manager. He had a responsibility to protect her and all other members of staff from this type of behaviour. He states that he did have words with X however I note that X was not subjected to any kind of disciplinary sanction. X’s promise “not to do it again” was sufficient for Y. If Y felt he was too close to X to deal with the matter objectively and responsibly, he should have reported it to his manager, Z

Following her last complaint to Y and X’s alleged promise not to behave inappropriately, she was again subject to unwanted physical conduct of a sexual nature. At that juncture, she felt that she was exposed to a very serious sexual assault. She moved to stage two of the grievance procedure and reported the matter to Z.  Z stated that he was taken aback by the seriousness of the allegations however the course of action he took would suggest otherwise. She reported the matter on the 26th March. It was open to him to suspend X immediately pending a thorough investigation. The factual situation meets the requirements for suspension as set out by Mr. Justice Judge Noonan in Bank of Ireland v Reilly [ unreported ][2015 IEHC 241:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.

Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation which the conduct in issue is known by those doing business with the employer. In general, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”

The respondent, now knowing what the allegation were against X, not only allowed, but directed the complainant to continue working in close proximity to X for the rest of that day and again on the Saturday, for a number of hours. The respondent’s evidence that it just wasn’t possible to manipulate the roster in such a way that would ensure they didn’t work together again until the investigation was complete was not credible. If Z had treated this matter with the level of seriousness that it deserved, he would have found a way to manipulate the roster regardless of the level of inconvenience caused and would have acted immediately to establish the veracity of the complaints and the level of danger the complainant was in.

What is even more alarming than Z’s initial inaction, is that when he took a note of the allegations he took it upon himself to add the words “in jest” to two of the complaints. That can only be indicative of his nonchalant ignorant attitude towards the complaints, as was his comment that he had to assess “just how uncomfortable the complainant was before I could make the decision on whether to treat the matter formally or informally”. It wasn’t up to Z to decide that. The complainant made a very serious formal complaint and it should have been treated as such. When Z spoke to X on the 30th April, he admitted all of the allegations. Even after admitting all of the allegations, he wasn’t disciplined. Instead Z decided to formally investigate the matter. At that juncture, there was nothing to investigate. Z had the complaints and he had an admission. X should have been immediately subjected to, at the very least, the disciplinary process. He was not. I find that he was not because Z like Y did not take the complainant or her complaints seriously. They didn’t take her seriously because she was a young inexperienced female and they deemed the subject of the complaints to be nothing more than a bit of ”jovial” high spirits and “boys will be boys banter’.

I note that even though Z commenced an investigation, the complainant was not interviewed and Y’s statement, brief in nature and lacking in factual details. It does not contain all of the complaints that were made to him by the complainant. X when interviewed on the 11th again admitted the allegations and allegedly resigned his position. However, based on Z’s direct evidence, I find that the statement that X resigned his position to be disingenuous. Z clearly stated in evidence, that he had to decide whether to move him to the sister restaurant. Then following my questioning and upon recognition of what he had said tried to deviate from that position. I find that Z decided not to dismiss him, or accept an offer of resignation but to employ him in the sister restaurant a few miles down the road. Z’s decision to allow him continue to work for him albeit for a different legal entity, knowing that he had engaged in a campaign of sexual harassment and arguably, sexual assault on a younger female member of staff demonstrates an alarming lack of responsibility for his female staff, a complete ignorance of the laws both civil and criminal together with a worrying unwillingness to take complaints of this nature seriously.

I find that the complainant was justified in feeling “horrified” when she discovered X was working at the respondent’s sister restaurant. She was equally justified in feeling “ horrified” when she discovered he was back working at the café & restaurant . The timing of his return I note is in dispute nonetheless it is conceded that he is working there now.

The complainant accepts that she didn’t make a complainant about the other staffs behaviour towards her after X left. She has an obligation to do so when making a claim of victimisation as is set out in the case of EDA1017 Tom Barrett v Department of Defence above.

I am satisfied that the complainant has established a prima facia case of sexual harassment on the grounds of gender and that the respondent does not have the Defence as set out in Section 15(3)of the Act open to them. The complainant first reported this matter to her manager, Y in December,2015. She reported several other matters to him between December, 2015 and March, 2016. No steps, reasonable or otherwise were taken to prevent a reoccurrence of the behaviour. Furthermore, when the matter was reported to Z he too took little or no steps, reasonable or otherwise, to prevent a reoccurrence of the behaviour. By moving X to the sister restaurant he simply moved the problem to another venue. I find that X’s behaviour, both physical and verbal, towards the complainant was degrading, offensive and humiliating and the attitude the respondent adopted in relation to the complaints only served to exacerbate that.

Section 82(4) as amended, The maximum amount which may be ordered by way of compensation under subsection (1)(c ) or (1)(f   ) shall be —

(a)     in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i)      104 times the amount of that remuneration, determined on a weekly basis,  

(ii)   104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) € 40,000,  

or

( b ) in any other case, € 13,000.

In relation to the finding of sexual harassment on grounds of gender I find that to make an award of 104 weeks does not adequately reflect the gravity of the matter. In all of the circumstances, I find that the most appropriate award is that pursuant to Section 82 (4) (a) (iii), of € 40,000.

In relation to the claim for victimisation, I find that the complainant did not meet the legal obligation placed on her to report the matter to her employment and therefore her claim fails.

Harassment, Sexual Harassment, Gender, Victimisation.

Sexual harassment