Complainant

Respondent

Anonymised Parties

A Store Assistant

A Store

Act

Complaint Reference No.

Date of Receipt

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

CA-00048223-001

21/10/2019

This case was assigned to me for a de Novo hearing in the aftermath of the legislative changes which evolved for the WRC following the Supreme Court case of Zalewski v Adjudication Officer (WRC) IESC 24, namely The Workplace Relations Miscellaneous Provisions Act, 2021 on the administration of oath. /Affirmation.

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

This case involves a number of complaints raised before the WRC on 21 October 2019. The Complainant, newly represented by Ms Catherine Mc Loone BL instructed by O Donovan Solicitors submitted that she had experienced gender discrimination, harassment and sexual harassment related to her gender during the course of her work. The case has been assigned a new case file from the previous case number ADJ 24958.

The Respondent operates a Supermarket grouping and was represented by Tiernan Lowey BL instructed by CC Solicitors. The Respondent has denied the claims.

The Complainant has lodged a second in time Personal Injuries case in April 2021.

I met with the parties by remote platform for the first time on October 26, 2021. I prepared for the hearing by review of the complaint form, and both primary written submissions. There was no record on file of evidence heard in ADJ 24958.

 I learned that on the previous Friday, the Complainant had presented impromptu to the Store seeking a return to work from a period of extended sick leave. The Complainants Representatives confirmed that she was not being paid by the Respondent when she lodged her claim before the WRC.

I facilitated a request to allow the parties time apart from the hearing to have some discussions. I was mindful that the Complainant had newly appointed representatives and some issues might be netted.

The case resumed, where a number of Preliminary Issues were raised by the Parties.

Application to admit 4 tapes into evidence:

1. Counsel for the Complainant sought the 4 recordings in the Complainants possession be heard in the context of the Complainant evidence. Counsel for the Respondent argued that these were surreptitious mobile phone covert recordings, which were inadmissible.

The tapes transcended the period 27 May 2019 to 28 August 2019. Counsel for the complainant submitted that issues had arisen regarding a flawed internal investigation and the tapes would provide a corroboration for the complainant’s evidence. She had been unable to retain data on her personal mobile phone as the phone was in use by a relative.

The Complainant had been denied an opportunity to test the evidence of Mr F in the case. CC TV Footage   at the Store would have been deleted. The Complainant had offered this information early in the case and the Respondent had chosen not to accept it.

The Respondent argued against the inclusion of the tapes, which were recorded without consent of either participant or were completed sometime before the complaint was lodged before the WRC. During that time, the Respondent had activated a number of investigations into the complaint of sexual harassment in addition to alerting the Gardai of the occurrence. The Complainant had not participated in these investigations.  The Respondent had sought to align the tapes with the Internal Investigations and had not rejected the tapes.

The Respondent expressed an unease at the way the tapes were suddenly deposited at the WRC during the hearing in the earlier case ADJ 24958. The Proprietor of the business raised doubts on authenticity and remarked that a covert recording was unreliable as in his opinion the person who taped the conversation held power over the direction of conversation.

The Respondent clarified that one of the two participants in the surreptitious recording, Mr F had since died in April 2021. The other participant, Mr G was a Manager at the Store and a witness in the case.

The Respondent took issue that the complainant had informed Ms S, the Appeals Officer, that she was retaining these tapes” for Court “and had not formally aligned them to the case prior to April/ March 2021.

Both parties made legal submissions in support of their respective positions.

 2 Application to hold hearing in private:

Counsel for the Respondent requested that the case be held in private in circumstances where the employee accused of sexual harassment in the case was now deceased. He asked that the WRC take account of the unique elements and sensitivity of the issues at hand out of respect for the family of Mr F, who also worked at the store. The Respondent had approached the case assuming it was to be held in private.

Counsel for the Complainant wished the case to run in public.

3 Clarification of De Novo Hearing

Counsel for the Complainant expressed some concern regarding a De Novo hearing. She said that it would place the Complainant” on the back foot” in terms of elongated time frame leading to further distress.

 She accepted that the case would run on sworn evidence but requested that decisions already made without evidence should stand. (Reference to recordings) On probing, Counsel confirmed that no clear precedent existed for this suggested “hybrid “approach.

Counsel for the Respondent was unwilling to contemplate a suggested hybrid approach and submitted that De Novo meant from new and was a reasonable way to proceed

The parties confirmed witnesses for hearing as

1. The Complainant, accompanied and supported by her father, but who would not be a witness and who expressed a wish for resolution.

2 The Respondent, Mr Z, Proprietor, Mr A Manager, Ms H, Human Resource Contact, Ms Y Appeals Officer

I took some time to consider these three Preliminary Issues.

 I noted that that the Respondent did not operate a Policy on covert reporting, outside of a short reference in the Disciplinary Policy.

At the conclusion of Day 1, I addressed the parties:

1.  That the hearing in the case would be a De Novo Hearing, to be held afresh and in private, having regard for special circumstances. I reflected those special circumstances were not defined within Section 4 of the Workplace Relations Miscealleaonus Provisions Act, 2021 but, in exercising my discretion, I was influenced by the sensitivity of the issue. My objective was to promote and host a secure environment to enable all parties to give evidence.
2. I explained that the case had been assigned to me following a recusal of another Adjudicator and that I could not walk in the shoes of the previous Adjudicator or truncate the file. It was a new beginning, a new file, a De Novo hearing   and I would work independently, impartially with fairness to both sides. The decision in the case and names of Witnesses would be anonymised.

I confirmed that I recognised the sensitivity of the subject matter in the case and would accommodate the complainant in giving evidence in private.

3. I permitted the inclusion of four audio tapes secured without consent by the Complainant, which were scheduled to be played in the aftermath of her oral evidence and prior to cross examination.

 I explained that the permission was a qualified and guarded admittance as I had been assured that those tapes “constituted the sole application for admissibility of evidence”. I took note that references to (social media/Snapchat) had not been retained. Transcripts of these tapes were to be agreed between the parties and submitted prior to the resumed hearing. I was mindful that the Complainant carried the burden of proof in the case.

Both parties were then invited to make written submissions on consent and to tender medical evidence as the next step in the process of hearing.

The parties agreed to proceed on that basis.

 I wrote to the parties on November 1, 2021, with a summary of my preliminary decisions and confirmed that an earlier complaint of Victimisation had been withdrawn by the Complainant.

I made a formal request for:

1 Organisational Chart

2 Floor Plan of the Store

3 Human Resource Booklet

To assist in my investigation.

In the interim and prior to the resumed hearing dates of 24 and 25 January 2022, the parties submitted agreed submissions. I received an agreed transcript of the phone recordings which were contextualised and played on conclusion of the Complainant evidence.

On the conclusion of the hearing in the case, I sought supplemental information on rosters, annual leave, sick leave for the complainant, acceptance of an offer to provide a usb of the audios.

I received this requested documentation, the last of which appeared on February 25, 2022.Each party was copied in on the detail.

The Complainant has been employed as a store assistant from 17 September 2012. She was paid €319.19 gross for a 33-hr week.

By the time of the second day of hearing, the Complainant had resumed work following an extended sick leave. She had returned in mid-January 2022 on a medically advised 1–2-day basis. This ran in conjunction with Disability benefit arising from the extended sick leave. Counsel confirmed that the Complainant continued to rely on supportive medication.

Counsel for the Complainant submitted that she had been subjected to severe sexual harassment and harassment on grounds of her gender by Mr F, A Supermarket Manager over the period December 2018 until 30 May 2019.

Counsel submitted that the Complainant had been recipient of unwelcome and offensive verbal harassment in the course of her work, December 2018 to May 2019. She had been witnessing to a number of lewd acts by Mr F, which she sought to stop. She was uncomfortable working with him and felt humiliated and degraded.

Counsel referred to Mr Fs practice of sending sexual photographs and videos to the Complainants phone to which she did not reply.

Counsel argued that the whole event had been preventable as the Respondent had been aware of the existence of this behaviour throughout and became formally aware on August 26, 2019. The Respondent had not assisted in prevention of sexual harassment and could not now rely on the defence contained in Section 14(a)

In May 2019, the Complainant informed Mr F that she was going to report this behaviour to the Store Manager. She was requested not to take that course of action as Mr F was concerned about his job.

After this, Counsel submitted that Mr F distanced himself from the Complainant and he did not engage with her in the course of her work at the store. He ignored requests issued over the store microphone and her work pattern was altered.

The Complainant reported the matter to the Store Manager on 26 August 2019 who told her he already knew about the sexual harassment by Mr F, and she ought to leave her employment.  Disappointed by this approach, she then sought out the Store Owner and reported the matter to him.

The Complainant commenced on certified sick leave on 30 August 2019. She provided a written statement to an external Human Resource Specialist on 6 September 2019. The complainant co-operated fully. It was the Complainant case that she was not believed, and Mr F was believed over her.

Without notice or explanation, a subsequent Investigator was appointed, and the Complainant was provided with two different reasons for the switch in Investigator.

1. The first Investigator had recused herself due to the sensitivity of the topic.
2. The first Investigator had previously worked for the Respondent and lacked independence

A fresh investigation commenced through carriage of the complainant’s notes, previously assured as private and confidential. These were incorporated into the second investigation.

Counsel explained that the complainant had taken issue on a stated procedural inequity when she attended to meet the second investigator who was attended by Ms H, the Employee Relations contact for the Respondent, who took notes. This was not reciprocated for Mr Fs attendance.

The Complainant expressed her dissatisfaction at the lack of fair procedures and sought an appointment of a new Investigator from the external Human Resource Company. As this was refused, the Complainant did not participate in the investigation.

Counsel drew on the case law in

Nail Zone ltd v A Worker EDA 1023 and A Store vs A Worker, EDA 163, as jurisprudence for assessing and identification of Harassment. She went on to remark that the defence open to the Respondent in Ss 14(A) (2) and 15(3) of the Employment Equality Act is not accompanied by a definition of “reasonably practicable “was moot when consideration was given that:

No steps taken by the Respondent, its servants /agents, even when it was well known in the Respondent premises that there was an issue in relation to Ms Fs conduct towards the complainant

This fell short of the test outlined in A Worker v A Hotel [2010] 21 ELR 72, where the Labour Court pointed to the need to take such steps as are reasonably practicable to prevent harassment rather than measures taken to prevent a reoccurrence of harassment.

Counsel contended that the workplace was void of policies and the Respondent had no understanding of the correct procedural pathway to follow on foot of the complaint.

The Complainant was seeking a finding that the complainant was sexually harassed in terms of the Employment Equality Acts 1998-2015 and an award of compensation. she also sought an order for staff training and implementation of a Policy on formal investigations.

In response to the Respondent Counsels opening remarks, Counsel emphasised the test of “Reasonably practicable “She argued that the Respondent had not had a Policy in place commensurate with issuing of the Complainants contract, had not adopting training or preventative measures on sexual harassment.

She expressed a shortcoming when Mr F was not listed as a witness in the investigative process and the Complainant had been met with an instruction to find a new job.

Response to Preliminary Issue:

Counsel for the Complainant denied any failure to comply with the statutory time limits applicable. She emphasised that the issue in the case was one of sexual harassment and discrimination runs from the date of last accusation and forms a continuum.

She referred to the Supreme Court case of Louth VEC and a 2012 Peer Review by then Marguerite Bolger SC, where separate manifestations of linked conduct form a continuum

Evidence of the Complainant under oath:

Prior to the commencement of evidence, the Complainant sought to retain her father’s presence for the duration of her evidence. The Respondent sought the inclusion of all witnesses.

The Complainant agreed to Mr Z presence. The Respondent objected to the retention of the Complainants’ Father as he had not accommodated the investigation.

I gave some thought to the parties’ submissions and in particular Counsel for the Complainants advocacy on the vulnerability of the witness and I re-affirmed my earlier position that I would hear the complainants evidence in camera. Mr Z would be permitted to attend to instruct Counsel and the Solicitor for the Respondent to take notes. All Legal Representatives remained present.

The Complainants father agreed to step out to facilitate evidence.

It is important for me to reflect that I observed that the Complainant struggled in giving her evidence. On a number of occasions, she broke down and on other occasions, she displayed an enormous anger towards the Respondent. I am grateful to Counsel for the Complainant for her skilful management of the Complainant which, in time assisted me in capturing her important evidence.  While I facilitated breaks in evidence, I noticed a marked change in the Complainants demeanour, which moved from anger to a quieter engagement.

At the conclusion of her evidence, the complainant asked if she could make an adhoc remark. I asked for relevance and the Complainant made an unsolicited disclosure that was not relevant to the core case. I have assured both parties that I have disregarded this in my findings.

The Complainant told the hearing that she had commenced work after school in September 2012. She stated that she had been sexually harassed on several occasions by a Manager, Mr F, between the end of March and April 2019.

She recalled that she was emerging from a 3-year relationship, when she was kept back late at work, leaving her and Mr F alone in the shop. Mr F made lewd comments of a sexual nature which she promptly rejected and asked him to refrain.

Mr F relied on sexual undertones in conversation and was suggestive in conversation. She reminded him that he had a wife and asked him to consider “what if your wife came behind you now? “Mr F was non plussed and “let on that nothing had occurred”

She confirmed that she had completed a few hours of Induction on commencement of her employment. This did not incorporate sexual harassment “just no bullying “She had received but not retained the staff handbook. She had not received training in sexual harassment. She alluded to the Human Resource Officer practice of presenting sheets to sign and hand back to the office, for example on cigarettes or being underage. The Complainant said that she had not participated in ongoing or regular training in sexual harassment 2012-2019.

The Complainant clarified that Mr F and her had been friends and the unwanted behaviour had started in December 2018. She was unclear on dates but referred to being told “sexual things “which both offended and disgusted her.

Incident One:

March early April 2019

The Complainant was working on check out after 10pm and the shop was closed. Mr F asked her to help him out with the cash and began flirting. They both went to the Office and the Complainant was relieved when nothing untoward occurred.

The Complainant then observed that Mr F had exposed himself to her and professed his interest in her. The Complainant said she was “gobsmacked” and reminded him of his family. Mr F tried to kiss her, and she became scared and shouted stop in a loud voice.

The next day, the Complainant was working near Mr Fs family member when he greeted her. she told him that what happened could not re-occur. Mr F dismissed this and told her that she would have given in if 5 more minutes had passed. The Complainant said she felt worthless.

Mr F adopted a practice of texting and calling her in addition to inquiring for her through friends and social media. This changed when he began to transfer dirty pictures through messages which quickly disappeared in a few seconds.

Incident Two

The Complainant recalled receiving a social media picture of a “hard penis “on her dinner break. This was accompanied by a lewd and suggestive message from Mr F. On her return to work from half hour break, Mr F said nothing and neither did she. She felt uncomfortable working with him and was relieved when other Managers were assigned to closing duties.

Incident Three c 4 May 2019

The Complainant had finished her work and asked Mr F if she could leave earlier than her 4pm finish. The Driver assigned to home deliveries was leaving an hour earlier. Mr F said he would assess the shop activity.

Shortly after 3pm, the requested departure time, Mr F approached her requesting assistance to bring out stock to the Off Licence. She waited on a steppingstone and was using her phone. Mr F exposed himself to her and approached her before she strongly rebuked him and walked out of the shop. Mr F tried to bargain with her for sexual favours to facilitate her early finish. The Complainant told him that “he was twisted “

The Complainant was on leave for a week and formed the view that she was in a difficult situation, but she did not have proof of what had occurred at the store. She returned to a store where rumours were escalating about her.

The Complainant recalled having to re-assure Mr Fs family member and work colleague that she had not “been with “Mr F. This was accepted. This colleague told the complainant that she was upset by disclosures on a mobile phone and that Mr F had told her that he was texting the Complainant. The Complainant said she hugged the colleague.

Sometime later, the Complainant approached the colleague and re-affirmed that she wasn’t having an affair with her family member. Her colleague told her that Mr F had come clean, she apologised for him and thanked the complainant.

The Complainant felt unable to confide in her own family. She did not have proof and discussed with a friend outside of the business. She felt overwhelmed by Mr Fs status of Manager to her role as Store Assistant.

She proceeded to record   Mr F on her phone on 27 May 2019. On that occasion, Mr F had told her that if she ever ventilated the occurrences at work, “his life would be over “.

The Complainant stated that she confided Incident 3 in another Manager, Mr B that Mr F had been carrying on inappropriately” trying to get with me “. His response was one of disgust and he told her “Tell someone “As if she was his daughter, he would want her to do that.

Background to Tape one

Mr F called her into office. The Complainant told him that she “was going to tell “on three occasions. Mr F told her that he had told Mr A that he had been inappropriate. Mr A had not approached the Complainant and she wanted it to “go away “(7.23 mins)

Mr F became more remote. The Complainant started on lates. She used to do long days. Mr Fs family members finished at 2.30pm.

On Monday, August 26, 2019, she recorded a conversation (25 mins) with Mr A. she was sick of things.  She had met him earlier that day.

She recorded a subsequent conversation(7.34mins) on August 28, 2019. She was treated inconsistently during these conversations. In the morning of August 26, she found that Mr A wasn’t going to do anything, by the afternoon, his language had become more respectful, and he took notes. Mr A said that Mr F was “getting help “The Complainant was unaware that he knew.

The Complainant felt justified in activating the phone recording “to get a bit of evidence to back up the truth “She described herself as angry and hurt.

The Complainant confirmed that Mr A offered her time off and told her to write everything down. He confirmed that he had not been familiar with the procedures earlier and just told her to go and get another job, that “the change would do me good “By then, the late shifts were getting too much, and Mr F was unprofessional in ignoring her.

The Complainant relied on her sister’s staff handbook of 2009, which was blanked on contact details in the Sexual Harassment Policy. She didn’t know who to go to May to August 2019.

The Complainant recalled that Mr A had called her 1-2 days post their conversation. He had become more serious and advised her to deal with Ms H. The Human Resource Officer, who was female.

The Complainant sought out the Store Owner on the Friday. She told him about the sexual harassment and abuse and said that she was leaving the workplace. He asked her if she was aware of the distinction between a joke and sexual harassment? She replied that the behaviour she had experienced was not “craic” and was “not wanted “She said she formed the impression that he was “going to act “he said that he would be in contact on whether formal /informal pathway would follow.

Mr Z did contact her the next day and asked her to come in to sign a statement, but she didn’t go.

She subsequently met with Ms HR1, the Investigator who met with her and assured her that she would get to the root of it, through both sides of the story. The Complainant compiled and submitted a statement. She expressed a confidence in Ms HR 1 and stated that she did co-operate.

Mr Z wanted her to go to the Gardai. He told her that he had met with Mr F who had expressed an apology.

The Course of the investigation altered when without her knowledge the Investigator was replaced by Ms HR 2 and a new investigation was announced. Ms HR 2   relied on the statement compiled for the first investigation and the complainant was uncomfortable that she was to be questioned prior to Mr F. She was reluctant to answer as the Company Human Resource Officer was there. she was dissatisfied at the small pool of two witnesses and nobody in the shop was questioned. It was a one-way system, where the Proprietor and two Managers were interviewed. Mr A, or Mr B were not interviewed. 

The Complainant told Ms HR 2 that she wasn’t happy.

She raised the inequity in the scribe function where Mr F did not have a scribe present whereas she had.

The 13 findings did not confirm sexual harassment and the Complainant appealed the report. She felt disrespected.

She met with Ms Y, the Appeals Officer and asked why Mr A had not been interviewed? Ms Y asked her to outline what Mr A would say. Ms Y asked for the recordings. The Complainant told her that there was no trust, and she would be waiting “for Court” She confirmed that she had received Mr Fs submission to the Investigation. she was disappointed.

The complainant described a pattern of detachment where Mr F had ceased speaking to her, Mr A told her to go elsewhere, and Ms Y was against her.

The Complainant submitted that her medical fitness had not been assessed prior to interview. She had been under Medical Supervision at that time

The Complainant needed medical attention and was prescribed medication and referred for Day Care. She has relied on the medication “all through this “and she described that “she was still suffering and going through hell “Her mood was low, and her reality was of suicidal feelings and depression.

Cross Examination

Counsel prefaced his cross examination to the Complainant by acknowledging that it was a difficult case, and he was obliged to put detail to her of what the Respondent has to say. He reassured the Complainant that she could seek a break when necessary.

Counsel focussed on the training received by the Complainant on sexual harassment during her work tenure. The Complainant was unable to remember the duration of that training but recalled a 4–6-hour commitment. She did recall that from Day 1, she had been informed that bullying was not allowed. She was unaware that she was to seek out Ms H as detailed on specific pages of the staff handbook. She recalled that the training was a “fly through with slides “and was not accompanied by forms or detail on sexual harassment.

She re-affirmed that she presumed she had received a 2009 handbook but could not find it and borrowed her sister’s version who started in 2016. Ms H was not mentioned as contact person in that version.

The Complainant disputed that she had been offered a copy of the handbook with her contract in an envelope in 2018. She attested to the presence of named Policies in Poly Pockets at Canteen but added that “they were not there before “she denied they were on the Noticeboard or distributed widely.

The Complainant confirmed that she had referred to what had occurred as sexual harassment on the recordings. She had told the Manager, Mr F to stop.

She relied on the phrase “mine was truth “when she countered that the Respondent had sought to sweep things under the carpet.

In answering Counsels query as to why the delay in acting on her records.? she said that it had been difficult to secure the relevant evidence. she was scared and ashamed. She said that it took her a while to go to Mr A, who she attributed with linking the investigation process.

The Complainant disputed Mr A’s stated latter day awareness of the sexual harassment as she believed that he knew of the rumours in May 2019.

The Complainant confirmed that she had given her statement of events to Ms HR1. She was aware of Ms HR2 involvement and Ms Y but had no recall of the appointment of a 4th Investigator on foot of reception of the recordings. Counsel said that was extraordinary as Mr Fs death had followed the submission of the recordings.    

The Complainant said that she was unaware that Ms H, Mr F and Mr Z were all out of the Business on August 26, 2019.

The Complainant accepted that Mr F had been attentive to her earlier medical needs but refuted that he was an excellent manager.

The Complainant clarified that she approached Mr A on August 26 to tell him what was wrong and “to keep an eye on Mr F”

She disagreed that Mr A had met with Mr Fs family member before end of May 2019 regarding an exchange of text messages. She accepted that she was asked by Mr A to commit the occurrences to writing, albeit on the second meeting.

The Complainant again disputed that Mr A only learned of the occurrences from her on August 26, she stated “he knew previous to that “She also denied that he was “in listening mode “at the meeting, which was the first occasion in which she had spoken out.

The Complainant confirmed the details of the occurrences which she had experienced. She concluded that Mr A had not responded appropriately.

The Complainant submitted that Mr F had told her that Mr A had an awareness of what had transpired between them, which was not an affair.

She did not accept that Mr F may have told her of Mr A’s awareness to serve to deter her making a complaint. She stated that Mr A knew through Mr B.

The Complainant had not retained notes of the first meeting. She clarified that she had been on leave the week preceding and approached Mr A outside of her working hours.

The Complainant became upset at this point, and I sought to reassure her by restating that I was seeking to establish facts in the case. I appealed to the Parties to protect the process of cross examination underway.

Counsel for the Respondent put Mr A s effectiveness as the first point of contact for the Complainant. The Complainant emphasised that Mr A adopted two different approaches at both meetings, the second of which she recorded. She described him as unsupportive at the first meeting followed by a supportive approach at the second meeting. She accepted that Ms H had been positively suggested as a support but added that she felt she didn’t have a choice in this and was not told her rights.  The Complainant accepted that Mr A had told her that this was his first experience of a reported sexual harassment in 33 years’ service. she did not accept that Mr A interpreted the circulating rumours in the store as a private matter.

The Complainant attributed Mr Fs family member as the validator of her rebuke to Mr Fs approaches.

 Counsel challenged the Complainant on her marked delay in reportage while in possession of proof via the recordings from May 27, 2019. The Complainant placed the context of delay in her reportage to Mr Fs pleadings that he was fearful of disclosure as if that happened, he would take his own life.

She rejected the premise that Mr F did not manage the rosters as he had excused her from the roster to accommodate a hospital visit previously.

Counsel then addressed the introduction of the issues to Mr Z on the Friday after her meetings with Mr A. She was clear in her stated distinction between “craic and sexual harassment” She confirmed that she approached Mr Z as she wanted Mr F disciplined and a written apology.

Mr Z told her that he wanted her to make a statement and denied that he thanked her for reporting. Mr Z pointed to it “being too big a case for him “She did not receive an invitation to meet Ms H. She did not come in on Sept 2 as requested due to illness. The Complainant confirmed that she offered the recorded evidence to Mr Z, but he did not accept them. He said that it was illegal to record, and he may be involved in a Disciplinary procedure. She accepted that Mr Z did offer to accompany her to the Gardai.

In addressing the 6 Sept attendance at Investigation. The Complainant was accompanied by her father and gave an account of what had occurred to Ms HR 1. The Complainant argued that she was entitled to hold on to her written statement when the investigator was changed over her head. There was no written clarity on the swop.

She denied receiving Ms Hr 2 letter of 4 October. She confirmed that she had met with Ms HR2 in October but was unhappy with her attitude when she put certain questions to her. She found that she was biased. She wanted a new Investigator. The Complainant was very confused on the chronology of the investigative process.

The Complainant had no recollection of the terms of reference.

The Complainant recalled the January 3, 2020, outcome meeting.  She requested that Mr A be interviewed but did not receive an answer.

By then she was under medical care and appealed the Investigation. The Complainant responded in saying that she was seeking a proper appeal and wanted to re-start without someone quizzing me about my statement

At the appeal, Ms Y asked her what evidence Mr A was likely to lead on? The Complainant did not capture likely evidence but stated that he was likely to lie like the rest of them.

The Complainant expressed a strong view that her handwritten statement should not have been shared between investigators.

The Complainant offered a number of clarifications on the logistics of the floor plan of the store. She confirmed that Mr F had confirmed that he had discovered her newly single status in December 2018 on a social media platform. She had not retained notes.

The Complainant confirmed that she at home when she received a lewd picture.

She was not a participant in staff appraisal or staff communication meetings.

The Complainant confirmed that her confidant prior to recording the 4 tapes was a friend and not an employee at the business.

The Complainant identified that her preferred outcome was a finding of truth and that wrong was done to her.

She confirmed that her approach prior to the recordings was casual and impromptu. She did not introduce the purpose of the meeting.

I probed the purpose of her communication with Mr B and the Complainant told me that it had been a chat and not a meeting and lasted 10-15 minutes.

She confirmed that she had spent 1 hr each with the Investigators and 40 mins with Ms Y.

She wasn’t aware of the overlap in her complaint being lodged with WRC during a live Investigation.

Conclusion:

In closing, Counsel submitted that the complainant had satisfied the burden of proof necessary in the case.

 She relied on the application of A Worker V A Hotel, where the Labour Court stated that an employer is obliged to take such steps as are reasonably practicable to prevent workplace harassment. It is not sufficient to show that measures were taken to prevent a recurrence of harassment after it had taken place.

Ms Mc Loone concluded the Labour court case A Shift worker applied, as it stressed that an excellent policy had to be accessible and operative which was not the case here.

The Respondent operates Family Business comprising of supermarkets. The Complainant has been employed as a Sales Assistant since September 2012 on a part time basis reflected in a series of contracts, the most recent 5 November 2018 which cross references the employee handbook. This readily available document hosts the Policy on Bullying, Harassment and Sexual Harassment.

The Respondent has denied all allegations.

The Respondent received a complaint of sexual harassment from the Complainant to Mr A, store manager on 26 August 2019. The complaint was made against Mr F, Deputy Manager, who was on leave on that day.

Four days later, the Complainant brought the matter to the attention of Mr Z, Store owner. The Respondent noted that the matters complained of were alleged to have occurred three months prior to the date of reportage.

Mr F was placed on paid suspension pending the outcome of a full investigation. The Complainant went on certified sick leave and returned to work on a supported basis in January 2022.

The Respondent case reflects a disappointment that the complainant decided against participation in the formal investigation which she herself had elected to pursue. The Respondent operates a Policy on Bullying, Harassment and Sexual Harassment which serves to deter this behaviour in addition to providing an investigative process which respects the rights of the subject of the complaint and the complainant.

The zero tolerance to sexual harassment is imbedded in the Induction process which was provided for all staff.

The Policy provides that a complaint “will be treated seriously and with due regard to the sensitivities of the complainant and to the rights of the person against whom the complaint has been made “ 

The Respondent submitted that the Policy was respected and adhered to in the processing of the complaint at the centre of the case.

The Respondent first became aware of complaints of sexual harassment on 26 August 2019 and denies the Complainant contention of a much earlier awareness. They note that this reference to a prior awareness was not mentioned in the written complaint of September 2019.

The Complainant acknowledged that Mr Z had addressed the matter and she was grateful for this.

On first disclosure to Mr A, Counsel emphasised that the complainant had canvassed Mr A for his view and asked that he not inform Mr Z. She then sought out Mr Z and informed him. This prompted immediate and firm steps to address the matter through the formal pathway.

Mr F was suspended on his return from leave on 2 September. This lasted 6 months and he never returned to the store.

An external investigation was commenced 6 days after the request for formal investigation was received.

An Investigation   commenced under Ms HR 1. The Complainant submitted a statement and attended for interview. Subsequently, Mr HR1 recused herself from the investigation.

Mr Z telephoned the Complainant on 16 September 2019 and texted the Complainant on 23 September in addition to communicating with the Complainant’s father.

On 4 October 2019, Ms HR2 invited the Complainant to attend investigation. The Complainant attended for interview on 9 October with support of her father. She chose not to proceed as her father requested as a pre cursor

1 written confirmation for recusal of Ms HR1

2 why the statement signed by the Complainants’ father was passed on from Ms HR1?

3 Whether Mr F had been formally informed of the reason for suspension?

On 10 October 2019, Ms HR2 provided the stated reasons for recusal, confirmation of the passage of the complaint between investigators and confirmation that Mr F had been provided with the reason for suspension as arising from allegations of a sexual nature.

The Investigator sought to reschedule but was unsuccessful as the Investigator was met with an allegation of bias from the Complainant. She did not participate in person or by telephone.

The Complainant has taken issue that Mr F had been allowed to give his response without a scribe and she had Ms H as scribe. It was open to her to seek to present without a scribe. Mr F did not give his response until November 5 and the Respondent does not accept the viability of an accusation of bias to that end.

The Respondent did not agree to allocate a third Investigator as there was no rationale for the allegation of bias or no prejudice experienced. The Complainant withheld the audio recordings from this investigation.

On 16 December 2019, the Investigation outcome issued. Out of 13 allegations, 10 were unsubstantiated and 3 were not upheld. The Investigator pointed to insufficient evidence to support the allegations put forward by the Complainant. She did record that she had found that the SOC and the Complainant had engaged in behaviour of a sexual nature without physical intimacy outside of the workplace but did not conclude that the behaviour was unwelcome or unwanted by the Complainant.

On January 3, 2020, the Respondent met with the Complainant to discuss the report. She was advised of her opportunity to appeal.

On 21February 2020, Ms Y conducted an appeal meeting, and the Complainant was provided with a full opportunity to state her case and provide relevant evidence. Ms Y found that the Complainant relied on having further evidence but did not submit it or provide a reason for not so doing outside that it was being retained for Court.

The Appeal outcome issued on 27 February 2020 and found that none of the issues raised went so far as to taint the overall conclusions of Ms HR2. Ms Y recommended that appropriate measures be put in place to facilitate a smooth return to work for the complainant. This was met with further medical certification from the complainant.

The Respondent submitted that the complaints lodged by the complainant were of a civil and a potential criminal nature and the Respondent had a duty of care to both employees at the centre of these complaints. The investigation was hampered by the absence of the complainant. The Investigation report was largely limited to the evidence of Mr F, whose evidence was not controverted. The Respondent was bound to accept that outcome.

The Respondent has sought to rely on the defence contained in S 14(A)(7) of the Employment Equality Acts 1998 -2015.

On evaluation of sexual harassment, the four components of

1 was the conduct of a sexual nature

2 the conduct was unwanted

3 violations of personal dignity

4 conducted created a hostile, intimidating, degrading environment

Counsel argued that all four ingredients must be in place to meet the definition of sexual harassment

Nail Zone ltd v A Worker EDA 1023, A Store v A Worker EDA 163, referred.

The Investigation Report upheld on appeal determined that the behaviour at the centre of the case was not unwelcome or unwanted and, on that basis, cannot amount to sexual harassment.

Counsel argued in the alternative that while sexual harassment is denied, the Respondent is not liable for the treatment as it took such steps as were reasonably practicable to prevent such treatment and/or to reverse the effects of any such treatment.

Reliant in SI 78/2002, Code of Practice on Harassment, the Respondent argued compliance through an active policy on sexual harassment and on the steps followed to prevent and reverse the effects.

A Worker v A Hotel [2010] ELR 72 and Atkinson v Carty [2005] ELR  1 at the Circuit Court

The Respondent concluded that training in sexual harassment was provided to all staff during induction.

They contended that they followed the pathway outlined in A Fast-Food Crew Member v A Fast-Food Outlet ADJ 8243.

The Respondent sought dismissal of the claims.

Preliminary Issue on Time Limits:

Counsel for the Respondent submitted a technical issue of time limits. He recounted that the cognisable period for the claims is 22 April -21 October 2019. The Complainant commenced sick leave on 30 August, 4 days post her discussions with Mr A. The WRC form was not particularised with dates, which was ultimately rectified in the Complainants submission of December 10, 2019.

Counsel reflected that the earlier allegations were not covered by the cognisable period and time should start from December 10, 2019.

Counsel responded to the Complainant response and accepted that the Respondent was on notice of complaints from 6 September 2019 but argued that the detail lodged on the complaint form was insufficient.

Counsel for the Respondent relied on written submissions and confirmed that they viewed the Complainants return to work as a positive development.

He submitted that the Respondent could only be judged on the material brought before them and re-iterated that the Complainant had withheld submission of the Audios in the case. He asked for a consideration of this delay.

The First Investigation was open to the Complainant and she was unreasonable in her nonattendance. There was no bias. The outcome was shared, and an Appeal provided.

The second investigation, prompted by the submission of the audios, carried an invitation to the Complainant to participate but events were overtaken by the demise of Mr F.

The allegations were serious in nature and Mr F had a right to respond to the tapes. The Respondent didn’t know how his response would have been framed in an investigative setting.

Secondly, Counsel submitted that the Respondent Policy provided a full defence. The Respondent was cognisant of the #Me Too prompted meteoritic rise of awareness of sexual harassment and the Operative Policy surpassed that of other companies.

It was the Respondent case that Mr A listened and acted compassionately on receipt of the complaint. He asked that the complaint be committed to writing.

Counsel stated that the Respondent Managers observed the Complainant and Mr F as “good friends “not associated with sexual harassment. A Family member of Mr F had raised the presence of phone communications exchanged between them, which the Respondent interpreted as “two consenting adults “

Counsel pointed to the time lag between May and August 2019, where the Complainant did not raise any issues in the workplace.

He emphasised that the Complainant had signed the Respondent Policy.

Counsel reflected that the Respondent had activated the Respondent Policy on Sexual Harassment once the Complainant had complained in August 2019. Mr W had reported the matter to the Gardai who sought contact from the Complainant as without that they couldn’t do anything

Counsel denied that the Respondent could be viewed as vicariously liable for the actions of Mr F as the Policy was universally available and operated.  He denied that the Complainant was directed to finding a new job. The Respondent had activated the Disciplinary procedure against Mr F and ultimately, he had been transferred to work in another shop. The Complainant had been advised by the Respondent to submit the tapes to the investigation.

Evidence of Ms H, Human Resources by Affirmation:

Ms H had an active role in human resources and health and safety in the Respondent store. She maintained a keen interest in the developments in the field and provides updates on current cases. She completed and scored highly in a Certificate in Bullying, Harassment and Sexual Harassment prior to the complaint.

She outlined the format of Induction which spanned almost a full day and outlined a zero tolerance on bullying, harassment, and sexual harassment. Staff were not permitted to work outside completion of induction.

 Ms H directed responsibility for reportage to staff. The Policies were placed at the back of the Health and Safety Statement. She denied that staff were asked to sign documents without reading them first.

She had reviewed and revised the Policies on completion of her course.  She was the identified contact person and the “go to “person for the Policies and Human Resources.

She watched out for staff welfare and confirmed that the complainant had previously sought her out when she was in difficulty. Ms H confirmed that the complainants’ contract was updated in November 2018.

In cross examination, Ms H confirmed that the complainant worked afternoons while she herself worked mornings December 2018 – May 2019. They work the same hours now.

There were identified male and female contact persons, and everyone received the same training. Mr F received training in 2006. Mr B had also received training. As updates and amendments unfolded, training was provided.

In addressing her role as scribe in the investigation, she denied that she was compromised in her attendance at the Complainants interview, while holding the dual role of contact person. She was not participant in the investigative process, and she had not been consulted by the Complainant.

She confirmed that Mr F had a contract but did not know if he had signed for the Policies referred to in her evidence.

She demonstrated that she had previously picked up a welfare issue involving the complainant when she had experienced and confided in her regarding a previous relationship difficulty.

She confirmed that Mr Z, Mr B, Mr F and Mr A were all trained in the sexual harassment policies.

She disputed the issue raised by the complainant that Mr A had not been aware of the policies when she said that she thought he had followed the policy.

She distanced herself from commentary on whether Mr B should have directed the complainant towards support and to formalise the complaint into writing, when she said that “I can’t speak for another person” on whether policy was applied.

Ms H assured Counsel that she was aware of appropriate intervention in face of “unwarranted conduct “where reportage and documentation should follow.

She confirmed that that the Policies were pinned to the notice board in canteen in 2019 and refresher training was provided.

Evidence of Mr A, Store Manager by affirmation

Mr A had been a manager for 15 years. He attested that the complainant was a good fit for the business and was “well able “.

He recalled 16 May 2019, as he had been at a Trade Fair the day before when he was approached by Mr Fs family member. She said that she had found texts on Mr Fs phone directed at the complainant. She was upset and Mr A advised against making decisions. she told him that “messages were going between them”

Mr A denied that Mr B had informed him of sexual harassment at the store. He confirmed that he had detected rumours and gossip during May 2019 which were indicative of an affair. He added that “it wouldn’t be right to go digging “

This was a first-time concern as before this he had observed that Mr F and the complainant “seemed to get on great “

He submitted that Mr F did not say anything to him. He denied that the complainant had informed Mr B of sexual harassment.

He recalled August 26 at 8.30 am. He was at the Off Licence door when the Complainant approached him looking down in mood. She said she was thinking of doing a course and he encouraged her. He was unaware of the subsequent recordings.

Mr A confirmed that he was thrown by the complainants’ disclosures. He had not come across it before. He was incredulous and his objective was to formalise the complaint in writing and provide a female support presence. He was aware that Ms H was on annual leave. He disputed avoiding dealing with the issue and knew that he had to manage what was “awful serious “against a duty of care to both employees.

He was aware that the Complainant addressed Mr Z afterwards.

He was part of the two-person team who subsequently suspended Mr F on September 1. His objective was to get the Complainant looked after properly.

During cross examination, he confirmed that he had been inducted in 2007. He was unsure whether this was updated, but he did not receive further training in sexual harassment. He worked with Ms H on the handbook.

He re-affirmed that he was not aware of the sexual harassment in May 2019.

He confirmed that on May 16, 2019, he and Mr Z had cause to sit down with Mr F when he received the visit from his relative. This addressed the text messages alone. Mr F did not disclose any detail but did confirm that he was looking for a place to stay. The Complainant was not discussed, and Mr A re-affirmed that he believed that an affair was occurring between them. He believed that it was not his business to quiz.

Mr A told Counsel that the meeting on 26 August was unplanned at 8 am. He re-affirmed a discussion on a course and denied that she had asked to chat. He was unable to identify the course discussed.

He was unclear of the composition of the first meeting which lasted 10-15mins.

He reaffirmed that this was the first occurrence of reported sexual harassment and had been taken off guard and thrown by the complainants’ disclosures. He had not retained notes. He contacted Mr Z soon after.

Mr A confirmed that he worked on Fresh Division and Mr F worked nights, which was typical for male staff. If a female member of staff was closing, she was advised to work with one of those lads and not close alone.

Mr A confirmed that the Policies were not audited. He did hold Management meetings but did not operate an appraisal system. Mr Fs relative did not seek a course of action and he did not feedback to her.

Mr F had sought accommodation in the Shop flat

Evidence of Mr Z, Store Owner

Mr Z owned and operated 2 stores. He confirmed that the handbook with emphasis on training was universally applied within the larger grouping. The Handbook was audited annually. He confirmed that he had not previously dealt with the circumstances of a claim of sexual harassment.

He recalled that Mr A had contacted him while he was away on a course and informed him that he was dealing with a complaint of sexual harassment. He instructed him to action the Policy and the contact Person. He had not received detail.

He returned to work at 5pm on 30 August, when the Complainant knocked on his door and presented as being very upset. He had never seen her like this. He knew it was serious. The complainant recounted detail of the allegations of sexual harassment. He said he listened and disputed that he had downplayed the content when he sought to ascertain if the Complainant was aware of the distinction between banter and sexual harassment. He confirmed that he had set out the options on informal/formal approaches.

He recalled that on May 16, 2019, Mr F had approached him to borrow the shop flat which he had previously used. He said that he was having marriage problems.

Mr Z did not contact the complainant at this time as both she and Mr F often appeared in each other’s company and there was nothing to suggest that their interaction was not consensual.

Following his meeting with the complainant in August, he sourced her number. He actioned the policy, but he found that she was reluctant to proceed. she was afraid that a marriage break up would occur. She was very concerned regarding rumours about her. The informal pathway was not a viable option.

The Policy took over at that point and Ms HR1 was appointed to investigate. He was unaware of any indication that the complainant was not fit to participate in the investigation. He confirmed her absence was sick leave related. He was conscious of having to balance the rights of both employees.

It took six weeks before the allegations were placed before Mr F. He had been suspended on the premise that allegations were to follow. Mr F was subsequently disciplined for inappropriate behaviour. He received a written warning and relocated his workplace to another store.

Mr Z accepted that the Complainant had offered him the audios if he wanted to listen. He reflected that he may not have explained it well, but he was aware of the legal implications of such products and told her to hold onto them for the investigation as he anticipated that he would be participant in the disciplinary process.

On 11 September 2019, Mr HR1 stood back from the investigation and told Mr Z that the allegations were much more suitable for the gardai.

He called the complainant on that day and told her of the criminal aspect. Mr Z said that he received a call from the complainants’ father at 7.40 pm that eve and expressed concern. He wanted Mr F to come clean and sought a written apology. He said that he was not interested in the Policy, and they had an opportunity to sort it out.

Ms HR1 had responded to the objections of Mr Fs legal reps who had submitted that it was inappropriate that she be involved.  This was not shared with the complainant. Ms HR1 told him that the “case would go the distance “.

Mr Z sought to find a replacement for Ms Hr1.

He also went to meet two Detectives at the Garda station, who indicated they were prepared to assist. They told him to encourage the complainant to step forward.

Ms Hr2 was engaged on 18 September 2019.

The Investigation outcome meeting took place on January 3, 2020, and had to be abandoned as the complainants’ Father levied a litany of allegations at him that progression was pointless and the meeting concluded after 20 minutes. They were informed of the right of appeal, which was received by hand.

During cross examination. Mr Z denied prior knowledge that Mr F had been inappropriate towards the complainant. He clarified that the May 16 meeting had reflected that his wife had asked him to leave.

He said he was first made aware on 26 August 2019, either later that day or the following day. He pushed activation of the Policy. He clarified that the first time he secured detail of the allegations was during his meeting with the complainant on August 30.

He disputed referring to the Policy as wholly inadequate on 12 September. He did comment that there were criminal and civil aspects to the case.

Mr Z denied that there was a gap in training and that confirmed that Policies were “organic documents “a normal part of the business.

He confirmed that he had accepted Mr Fs legal team objection to Ms HR1 and that he had not mentioned that to the complainant. He told her that Ms HR 1 had recused herself and agreed that it was unfortunate to have to start over.

In addressing Ms H presence as scribe at the complainant meeting, Mr Z confirmed to counsel that he had requested that she take notes. the Respondent had not acted in defiance of the policy as Ms H had not been involved as the contact person. Mr F had sought her removal. The complainant had gone through the detail of her allegations with Mr Z.

Mr Z responded to Counsels questioning on the complainant’s fitness, when he said that the Respondent was not informed that she was unfit to participate in the interviews of the investigation. He denied saying she was not well enough to the named Gardai, who had pressed on him that it would be a difficult case to investigate but would need the full cooperation of the complainant.

Counsel put to Mr Z that the C complainant said she didn’t feel well on 14 October. Mr Z said she had met with Mr HR2 on 9 October.

Mr Z denied that the Investigation lacked substance or that sexual harassment occurred.

Counsel challenged the lack of visible consent to the changeover in investigators. Mr Z said that she was afforded the same process as Mr F, and she received all participant statements.

On September 2, Mr F was suspended, and he apologised for bringing this down on the company. He was remorseful.

Mr Z had interpreted the earlier interactions of Mr F and the complainant as an affair.

In redirect, Mr Z confirmed that he would not alter his approach on hindsight. He reflected that all trust seemed to disappear within the process.

He expressed the view that the audios did not in fact exist. Once they arrived, this prompted a fresh investigation. He met with Mr F and explained that further evidence had arisen. He was suspended.

A new Investigator was appointed, and terms of reference were in preparation a week later.

Mr Z became worried when he couldn’t contact Mr F. He contacted his family to ask if all, ok? The family mentioned they were going through the motions. Mr F took his own life the next day.

In responding to clarifications, Mr Z clarified that he didn’t feel that he could have intervened to bring the complainant to the investigation table. He attributed that role to Ms HR2.

When asked to identify the signs or symptoms which may accompany a culture of sexual harassment, Mr Z was unable to identify.

He clarified that Mr F had availed of the store flat for one night.

Mr F had not left him  a personal message before his death.

He had not considered broadening the investigation at the store.

Evidence of Ms Y, Appeals Officer

Ms Y outlined a considerable background in Law and Human Resource Management.

She managed the Appeal of the Investigation and did not grant a fresh investigation. She examined the procedures, checked for inherent unfairness, and invited the complainant to say anything or everything she had to say. She had the scope to grant a new investigation.

The Complainant confirmed that she was willing to meet Ms Y, who did not advance medical grounds.

Ms Y confirmed that she met the complainant and her father at 5pm on January 21, 2020, in what was a confrontational meeting with repeated interruptions. Her questions were not answered.

She described it at the most challenging meeting she had undertaken.

When seeking to ascertain the relevance of Mr A as a witness, the complainant said “he knew “and led her to believe that there had been another meeting. Mr A was a recipient of information and not a witness.

Ms Y declared that the complainant did not engage.

Ms Y looked for existence of other evidence. She addressed the topic of the audios which were withheld as she didn’t know what they contained.

She concluded that she had tried very hard to conclude the appeal. She reverted to Mr Z to address the switch of Hr 1 and Hr 2 process.

During cross examination, Ms Y clarified that the appeal was to address the outcome of investigations. This was detailed in an email dated February 21, 2020.

Ms Y disputed that the complainant could have formed the view that it was a de novo hearing.

In addressing Counsel probe on whether complainant should have been interviewed if not medically fit? Ms Y responded that There was absolutely no sign of ill health.

Ms Y was informed that the complainant was holding the tapes for court but would not clarify which Court.

In clarifications, Ms Y explained what she had meant in her recommendation to return the complainant to work as “to ease back in “

She clarified that the meeting was dominated by the Complainants father on a 60:40 mix and lasted one hour. She did not recall whether the complainant was on certified sick leave.

Ms Y explained that she had some concern on the appropriateness of the complainant’s father being present when matters of a sexual nature were discussed by his daughter. She clarified that no obvious accommodations were sought to assist the complainant, but she was mindful of the general reluctance in cases of such sensitivity.

Conclusion:

Inconclusion. Counsel submitted that in considering the burden of proof, the Adjudicator could not overtake the procedures completed by Ms HR2 and Ms Y and conclude that sexual harassment occurred. That would be grossly unfair to the subject of the complaint.

The Respondent has denied sexual harassment and can only be assessed on their Organisational knowledge.

The WRC process triggered the release of the tapes and the Respondent had been denied an opportunity to test this evidence.

He re-affirmed that the complainant had not participated in either investigation or appeal. she did not have plausible grounds to support her absence and there was no evidence of bias.

Of importance, he said that no reason had been provided for withholding the tapes and keeping them for Court. He submitted that had the tapes been produced earlier a different outcome may have occurred as his client had been denied crucial evidence at a fundamental juncture.

He summarised that the Respondent did everything possible to get to the bottom of the case and was not at fault. The Respondent operated a good policy, signed by the parties, who had completed induction which incorporated detail on sexual harassment. The Respondent hosted a contact person who was accessible, personable, and sensitive. The Respondent took the allegations very seriously and flagged a potential criminal element.

Counsel submitted that no Policy could have prevented Mr Fs actions.

He pointed to credibility issues in the complainant’s evidence. Managers at the Store were unaware of the detail of the allegations until August 26. The Rumours and gossip formed a sub plot in the case.

Mr Lowey emphasised that the Complainant had not proved in evidence that they had constructive knowledge of sexual harassment. The Compliant delayed 3 months before bringing the complaints forward. She did not ask for a deferral of investigation on health grounds.

The Respondent denied that the complainant was at first encouraged to find a new job, saying it was not in Mr As makeup.

Ms Y had the scope to grant a new investigation. counsel submitted that the complainant had denied herself that fresh investigation by withholding the audios.

The Respondent sought to rely on the full defence provided for in Section 14(A)(2)

This is a case which requires a decision on whether the Complainant was discriminated against on grounds of her gender in relation to complaints of sexual harassment and harassment contrary to the terms of the Employment Equality Act 1998-2015. 

My jurisdiction lies, therefore within Section 2 and Section 6 Of the Act alongside Section 14-15. of the Act. An earlier complaint of Victimisation, S 74(2) was withdrawn 

In reaching my decision in the case, I have carefully considered all oral and written submissions, evidence as adduced and the 4 audio tapes. I have also had regard for the post hearing documentation.

I note that the Complainants Legal Team had altered in the run up to the De Novo hearing, I thanked both parties at hearing for the clear commitment and professionalism both parties applied to the case. 

I have endeavoured to run my investigation in a respectful yet incisive manner. I am mindful that both parties presented at hearing with very heavy and tired hearts and both parties were visibly apprehensive about the future.

 I noticed and understood this and empathised with both parties on the death of Mr F during the lifetime of this case. I am clear that during a time, Mr F was a friend to the Complainant and an employee to the Respondent. In my opinion, both parties have lost by his passing. 

I kept the Parties late on the third day of hearing to facilitate a closure of the hearing. I acknowledged that generosity in staying late. 

I must now return to the framework for my investigation. 

Harassment:

The Law on Harassment is set down in:

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.

(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.  

Chapter 12, Bolger, Bruton Kimber, Employment Equality Law 1st Ed.2012

Harassment, including sexual harassment, was outlawed in the Employment Equality Act, 1998 even before the European Community began to delve into the area. The European Directives, including the Recast Equal Treatment Directive, the Race Directive, and the Framework Directives all now specifically include harassment in defining what constitutes unlawful discrimination. 

Both Harassment and Sexual Harassment are considered prohibited conduct under the Employment Equality Legislation. There is a defence open to the Respondent in Section 14(A) (2).

Section 15 of the Act outlines an Employer Vicarious liability and contains a defence in S15(3) 

Harassment.

The Law on Harassment is also provided in the Criminal Law of NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997

10.— (1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with or about him or her shall be guilty of an offence.

(2) For the purposes of this section a person harasses another where—

(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.

(3) Where a person is guilty of an offence under subsection ( 1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may specify, F2 [ communicate by any means with or about the other person ] or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence.

(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do.

 (6) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment to a fine or a term of imprisonment not exceeding 10 years, or both. 

(b) on conviction on indictment to a fine or a term of imprisonment not exceeding 10 years, or both. ]

 My sole jurisdiction is as set out in the Employment Equality Act. I have referred to the Criminal law for illustrative purposes alone as that pathway presented for a short time as a proposed but not actioned avenue in this case. 

1.1   Preliminary Issue Time Limits

The Respondent sought the cognisable period for the claims should be captured between 22 April 2019 and 21 October 2019. He submitted that any alleged contravention occurring outside this strict time frame is non justiciable. He also raised the paucity of particulars on the complaint form before WRC which did not match a chronology to the occurrences complained of.

The Complainant disputed this in its entirety relying on the supremacy of the provisions of S 77(5) of the Act and sought recognition of the entire period December 2018 to May 2019 as a continuum.

For my part,

Section 77(5) of the Act provides 

 (5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. 

The Labour Court considered the application of S 77(5)(A) of the Act in Mc Camley v Dublin Bus [2016] 27 ELR 81

In so doing they drew on the deliberations in a UK, Court of Appeal Case of Arthur v London Railway [2007] IRLR 58

Mummery L.J. said:

‘The provision in s.48(3) regarding a complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time. 

The Court went on to consider the application of s. 77(5)(A) 

The 2008 incident involved an assault on the complainant by a named individual. The Facebook incident occurred some four years later. That posting was made by a different person than the assailant in the 2008 incident. There was no evidence proffered of any other incidents of harassment of the complainant in the intervening period. The 2008 incident was also different in its nature and character than the Facebook incident. In these circumstances and having regard to the length of time between both incidents, the court can see no basis upon which it could be held that they were sufficiently connected so as to be characterised as separate manifestations of the same harassment. Consequently, the court is satisfied that they do not constitute a continuum of the harassment for the purpose of s.77(5) of the Act. Accordingly, the court must hold that the 2008 incident was a stand-alone occurrence and that the complaint in relation to that incident was presented outside the statutory time-limit and is statute-barred. 

In the instant case, the occurrence dated c 4 May 2019 falls within the cognisable period for the claim. However, I am mindful that the complainant has convincingly joined together associated complaints which are allegations of detriment outside the cognisable period. 

These events are in my opinion linked and form a continuum. I am strengthened in my view on that point by the surprising declaration from the complainant when she told me that her newly declared single status was observed by Mr F on her social media site in December 2018 and from then she referred to changes in their working relationship. 

I find that the events complained of form a continuum under S 77(5) and I find in favour of the Complainant in this Preliminary Argument. I have accepted the chain of associated events as a continuum for the purposes of my Investigation. 

Substantive case. 

This case came before the WRC on 21 October 2019. The Complainant has moved a personal injury case also, which I understand is now before the High Court, since April 2021. 

Burden Of Proof:

The Burden of Proof necessary in this case is set out in Section 85 A of the Act.

It requires that the Complainant must establish to my satisfaction on the balance of probabilities a prima facie case of discrimination, that is she must infer, not conclude on facts from which it can be established that she was sexually harassed and harassed on the grounds of her gender. If she succeeds at this juncture, the burden of proof to rebut that prima facie case rests with the Respondent.

Sexual Harassment:

The Complainant has submitted that she has rejected the findings of both the external investigation and the resultant appeal. She said that she had sought a new investigation and failed in that. She has presented as a frail individual who submitted that she has been maintained on anti-depressant medication, day hospital, counselling, and medical support. I did inquire on a number of occasions if the complainant wished to tender medical evidence, but none was forthcoming. I was encouraged by reports of her supported return to work. 

The Respondent has submitted that they have placed full reliance on the completed investigation of Ms HR2 and the Appeal by Ms Y and that their findings cannot be disturbed due to the refusal of the complainant to engage and the strategy she adopted in relation to the tapes. The External Investigation did not determine that sexual harassment occurred but rather that Mr F had by his own admission behaved inappropriately and was disciplined accordingly. The issue of the 4 audios came as late disclosures for the Respondent, who had begun to doubt their existence. These were in turn entered into a new investigation, which came to abrupt end on the passing of Mr F. 

My Investigation is given Statutory authority by means of Section 77 of the Act.

The Law on Harassment was defined in Nail Zone ltd and A Worker EDA 1023.

I had the benefit of hearing the complainant’s direct evidence in this case. I also had the benefit of hearing the audios and reading the agreed transcripts I appreciate that I did not hear from Mr F or Ms HR1. The Respondent clarified that Mr F had not been a witness in the earlier case. 

Analysis:

I was struck by the Complainants account of the baseline of the working relationship between her and Mr F.

He had been in the business some 6 years earlier than the complainant as reflected on the record of his receipt of the staff handbook. The incidents in this case were chronicled from December 2018, following the complainant’s declaration of her single status. which she attributed as a trigger for Mr Fs change in attitude to her.

The incidents complained of were not witnessed or recorded. It was the Complainants case that the Respondent was on full notice of the extent of the sexual harassment through Mr B and latterly Mr A, from May 2019.

 On clarification, she told the hearing that she had chatted with Mr B and told him that Mr F had sought to “get with her “and had not sought a course of action from him. she clarified by saying that Mr B had told her to “tell someone “

I accept from the Complainants evidence that she became the target of Mr Fs interest from December 2018. I believe her when she described that he sought her out at work and spoke to her reliant on sexual undertones. I also believe her when she described the lewd acts witnessed by her which shocked and disgusted her. However, I also detected that there was a “buoyancy “and “easy familiarity “in their working relationship at that particular time. The tapes directed me to this fact.

She confirmed that she had exchanged texts with him, all of which had disappeared and were not retrievable. This was confirmed by Mr A and Mr Z in the context of the meeting they had with Mr F on May 16. I have to conclude that there was a certain amount of consent to the changed working relationship from December 2018. This is reflected in the audios, which I appreciate were led by the Complainant and Mr F was unaware he was being recorded surreptiously.

The Respondent has marked the Complainant as missing from the business through sick leave and annual leave 12 May -June 1. however, audios 1 and 2 are attributed to May 27 and reflect a statement from the complainant that she didn’t want to come to work on that day and a further direction from Mr F that directs her back to the tills which suggests a workplace presence. I am confused by the sick leave record attributed to this time.

Audios 1 and 2 reflect the complainant’s distress at a reported growing wave of rumours about her relationship with Mr F which she has always denied.

Audio 2 features a discussion of the triangular relationship involving Mr Fs family member and complainant colleague and the tape suggests at the very least that the complainant was keen to damage limit any circulating reports within the shop. She made a very clear statement on that tape of her stated intention to report the lewd acts reflected in her evidence, but all parties accept that the first reportage of the allegations of sexual harassment were articulated on the morning of 26 August 2019 to Mr A. and more precisely in the taped encounter on 28 August 2019.

The Complainant has relied consistently on her stated certainty that the sexual harassment was known by Mr A and Mr B as far back as May. I have not found evidence of this. I have had regard for both parties’ placings on the Organisational Chart i.e., that Mr F was a Manager and the Complainant, a subordinate.

In fact, from the evidence of both Mr A and Mr Z, I found very honest disclosures that they both understood, with some embarrassment that Mr F and the Complainant were engaged in a relationship, the extent of. which they felt was none of their business and consequently did not probe.

 Events overtook them when Mr Fs family member attended the shop and disclosed the exchange of texts which were not probed by Mr A but did prompt a tri partite discussion with Mr F when he told them both then he was seeking refuge through the store flat from a marital problem

. It is of note that he availed of the store flat for one night only I accept the evidence of Mr Z in that regard.

The Complainant recounted a change in Mr F following her interaction with him through the taped conversation on May 27. She said he became indifferent and inattentive at work towards her. It was clear to me that this disappointed her.

I have considered the parties evidence very carefully around the delay May 2019 to August 26, 2019, which signalled the reportage of sexual harassment. It is arguable that the complainant may well have reported it to Mr F himself when she articulated those words on the tape on May 27, but a procedural containment followed from both of them.

I had to consider what prompted the disclosure by means of an unplanned meeting on August 26 in a week where Mr Z, Ms H and Mr F was absent from the business? On a careful considering of the complainant’s evidence, I found some guidance in her own reasoning apportioned to the delay. she said that Mr F had changed towards her, and she was sick of the late shifts. A careful perusal of rosters confirmed an abundance of late shifts on her line over July and August. A careful consideration of the evidence reflected that the Complainant had “shrunken “somewhat into the secondary victim” mode at that point. she expressed an anger that attention was directed by the Respondent towards Mr F and his family without commensurate attention to her. I found this anger to be a displaced anger. I have identified that Mr F was the real target for this anger. 

I find that I must conclude that the Complainant was significantly aggrieved at where she found herself in August 2019. I find on the balance of probabilities that she was indeed subject of the rumour mill by the work force, and this upset her greatly. I did not hear evidence on the detail of that rumour mill outside an over arching reference to the global presumption of an affair.

I do not accept her evidence that she stayed silent until August because she believed that Mr F had declared that he would end his life if the lewd occurrences were reported or that she didn’t want to break up a marriage. The audios recorded at their height reflect Mr F’s view that his working life might be compromised. I have found that the Complainant was slighted by the end of August 2019. she was in a self-declared wilderness when she approached Mr A on August 26, 2019. 

I did probe whether she identified any supports for herself at the Store through her immediate supervisor or a friend? However, I was struck by her description that no one was available to her and instead, she acted on the advice of an external friend who advised her to tape people without their knowledge. I found it regrettable that the complainant did not test that advice before acting on it.

However, the question remains has the Complainant satisfied the burden of proof required in the case? 

The Code of Practice SI 208 /2012, Harassment Order emphasises that intention of the perpetrator of sexual harassment is irrelevant, the effect of the behaviour on the employee is what is relevant. 

I find that the complainant wrote down her complaints of sexual harassment following a number of invitations to do so by the Respondent. She submitted these on 6 September 2019.

I have taken account of the complainant’s evidence on sexual harassment and find that she has established a prima facie case of sexual harassment as described section 14 A of the Employment Equality Acts.  I find that she was subjected to verbal, written, physical and visual displays of sexual harassment The impact of which has been enduring as reflected by her statements at hearing on how the complainant had absented herself from the workplace and is still visibly struggling to cope on her recent return there.

I would have liked to have heard medical evidence in the case as the Complainant herself referred to a recent diagnosis of depression and anxiety without pinning down a commencement date for same. 

Consideration of the Respondent Defence: 

I must now consider whether the Respondent has rebutted the prima facie case raised? The Respondent has claimed in the strongest possible terms that they are rightfully seeking the defence outlined in Section 14(2) of the Act by their pro-active management of the matter through foundation policies, a universally circulated zero tolerance sexual harassment and a swift elevation of the complaint to external formal investigation and appeal.

In my review of the facts of this case, my attention was drawn to the Labour Courts Deliberations in MBCC Foods ltd v Quilty, EDA 28/2021, In this case, the Court reflected that the Respondent had accepted the occurrence of sexual harassment. The court relied on a montage of jurisprudence in claims for defence in cases of sexual harassment, in setting out what they considered could succeed in securing such a defence.

They heralded the necessary pre -existence of adequate policies which were understood by Managers for implementation. In MBCC Foods, they identified aseismic gap in that regard which ultimately placed the defence out of reach and an escalation of a compensatory award.

I understood the point made that a live policy anchors training and awareness, without a policy, nothing proactive followed and sexual harassment was enabled to exist. 

It is not easy for the Court to measure the level of seriousness of a complaint of sexual harassment. Obviously, the very upper end of seriousness includes situations of sexual assault. However, it is not possible to say with any certainty what might be construed as minor examples as much can depend on the impact of harassment on the individual. Each case has to be examined on its unique facts. What can be said in the instant case is that the Complainant has a right to go to work without being subjected to unwanted pictures of her manager in his underwear or childish and offensive representations of male genitalia. While the nature of such offensive behaviour may not be in the same category as physical assault, it is considerably more than harmless banter and the Court does not concur with the view of the AO that the acts fall into the lowest category of misbehaviour. 

I fully accept that the Respondent had comprehensive policies and procedures in place seeking to prevent sexual harassment and manage complaints arising. I also noted the diligent recording system which reflected the participants interface with training. I also note that the Complainant accepted that she had received a short induction but could not recall training in sexual harassment in the intervening period. she had consulted her sister’s handbook to guide her reportage. I have also considered her signed acceptance of Inter staff behaviour sheet which served as a Mission Statement on unacceptable behaviour at work on 24 September 2012.  This, for me constituted a robust zero tolerance strategy and was distinguished from MBCC foods.

” All forms of sexual harassment as defined in our Policy for same is totally forbidden and unacceptable “

I am also influenced by the complainants’ disclosures on the tapes to Mr F that his actions constituted harassment in May 2019. This demonstrated an insight, for me into the depth of the unwanted behaviour to the point where it was named.

It is important for me to reflect the precision in the prescriptive procedures open to the complainant to highlight harassment and sexual harassment A recipient of unwelcome behaviour such as harassment and sexual harassment was invited to record the instances through time, location, and witnesses. the provision of the contact person was clear, but I accept the Complainants point that Ms H was not named in the Policy. However, I accepted Ms H evidence that she had recognised a past vulnerability in the complainant and had supported her.

Of interest is that temporal limitations were set down with an opportunity to extend that time on exceptional circumstances. It goes to the root of this case, that the Complainant was not met with temporal limitations for her complaints within the work setting. 

I must be satisfied that the policy on sexual harassment had adequate arrangements in place to ensure that the content of, and importance of adherence to that policy was properly understood by the Managers who were responsible for its implementationA Store v A Worker EDA 163

This brings me to the most difficult part of the case to assess.  Mr A encouraged the Complainant to write everything down in the second and third audio on August 26. The Complainant said she was defeated in complying with this as his first response had not been as supportive. This was the untapped meeting.

I have reflected on this, and I have identified a reluctance in the complainant to formalise her complaint. I appreciate that by then she was feeling “left out “and diminished and had predicted a difficulty in being believed by Mr Fs immediate peer grouping she held on tightly to the premise that the respondent was aware of the enormity of the sexual harassment from May 2019. My attention was drawn to Mr A’s tones on the audios as it began to dawn on him the particulars he had to deal with. A light bulb moment evolved, and I could detect a warm and empathetic approach.

 However, the audios demonstrate the pathway that was proposed first by Mr A on the tapes subsequently endorsed by Mr Z, and actioned by the external trio of Ms HR 1, Ms Hr 2, and Ms Y. The Complainant agreed to participate in the formal investigation tabled by the Respondent.

The sole obstacle identified by Mr A, and I believe him, is that the Complainant was not yet prepared to commit the complaints to writing on August 26 -28. I can appreciate that once Mr A got a sense of the enormity of what the business was expected to address, he did experience a certain “jitter” he recovered promptly and put a welcoming and real time structure for reportage before the complainant. She did not avail of this

 Instead, she approached Mr Z who mirrored Mr A’s approach and asked her to commit the complaint to writing. The Complainant went on sick leave immediately after that meeting and did not avail of the invitation to write her complaint until she met Ms HR1 on September 6.

It is of interest and relevance that the complainant committed the complaint to writing on that day. She demonstrated a willingness to participate in the investigation. 

Everything changed after this. It struck me that the complainant was unaware of the ownership of the complaint once she completed it. She submitted the complaint to her employer and while on sick leave awaiting participation in the investigation. It is my view that the complaint became the property of the respondent from that date forward unless she decided to withdraw it.

By September 11, Ms HR1 had recused herself from the investigation at the behest of Mr F. Mr Z sought to explain this to the complainant but I believe the message got lost in the reference to escalating the manner to the Gardai.

I was struck by the concern Mr Z expressed in relation to seeking to preside over a fair process in dealing with something that he didn’t have a lot of experience in. He was holding on tightly to the company policies and I accept that he pointed to a deficit in how the policy would work alongside a potential garda investigation. I accept that he spent time with the Gardai and acted on their advice to seek contact from the complainant. This was not forthcoming. I found him very sincere in that regard. 

The introduction of Ms HR2 was met by opposition from the Complainant and her father who sought to negotiate terms for the complainant’s continued involvement in the investigation. In essence, there was a concerted attempt by the Complainant and her support person to operate a “dual control “to in effect barter in the Investigation, which was unsuccessful. They set terms for an acceptable outcome which veered outside due process. The Respondent did not detour from the planned formal investigation.

 The Complainant boycotted the investigation after that. I could not identify that the investigation was biased at that point. However, I did note that the Complainant held a strong view that she had been treated differently to Mr F in the course of the investigation. I learned in the context of the hearing that the Respondent had accepted his objections to Ms HR1 in her presence as a scribe. 

I was very struck by the complainant’s visible lack of awareness of the chronology of correspondence which governed this period and in particular the letter of October 10, which seemed to me, at least to answer the questions posed by the complainant’s father. I found that she just wasn’t present in her own case at that time.

I asked Mr Z if he had considered approaching the Complainant to encourage her attendance, at investigation? he told me that he saw that as Ms HR2 job. I can understand and appreciate this position.

 I have found that Ms HR2 legacy documentation reflects an ardent effort to encourage the complainant’s participation in investigation by issuing of terms of reference and a dossier of direct communication which incorporated clarifications and stated aims for the investigation. 

I note that a Personal Injuries case was brewing also in that period, and I have identified that the complainant just got lost in the different strategies all running simultaneously. I completely understand that the complainant was frightened and embarrassed during that time, however, the pillars of an investigation were open to her which could have eased that fear .and perhaps brought an earlier closure. During all of this, the Complainant submitted the instant complaint to the WRC.

I found that the Complainant did not understand the targeted objectives at this point as the procedural strands became entwined remotely, but there was no participation in the foundation investigation.

. I note that Mr Z recounted the complainants Fathers insistence that Mr F apologise long before the completion of the investigation and distanced the complainant from the investigation from an early stage. That was regrettable.

I find that the Respondent was bound to investigate the allegations as a staff welfare issue as well as seeking to uphold the rights of the participants. It was open to the complainant to name witnesses who may have assisted in the inquiry.

I have found that the Complainant may not have appreciated that and may well have benefitted from the presence of a professional representative much earlier in the case.

I cannot find the Respondent culpable for the complainant’s lack of participation in an agreed investigation. 

Counsel for the Complainant has submitted that the Complainant was not medically examined prior to the investigation and that this veered outside the terms of reference. I agree that it would have constituted best practice to ensure that an employee on sick leave would be deemed medically fit to proceed. However, the Complainant confirmed that she has been under constant medical advice from August 30, 2019. This team did not steer her participation away from any investigation or appeal. No medical evidence was adduced in the case.

I was struck by Ms Y objective commentary on seeking to conclude her appeal. She said that the meeting was monopolised by the Complainants father, and the complainant had not engaged outside of allegations This was disputed by the Complainant who submitted that the outcome sought was a fresh investigation.

I found that Ms Y adopted a very measured approach to the appeal.

I note her recommendation to return the complainant to work which went unheeded.

I would like to take this opportunity to say that I understand that the Complainant was terribly hurt by her experiences at work and perhaps her father understandably sought to protect her from further hurt.

 But it is impossible to make an omelette without breaking eggs and there was an onus on the complainant to participate in her own case with support. She just didn’t seem to understand that she would be expected to prove her case and her irritation towards Ms HR1, and Ms Y stood in sharp contrast to her initial approach to Mr A and Mr Z.

The Respondent, through the appointed investigators was prepared to hear both sides. I have found that the objections raised by the Complainant were remote from the process and were a defensive and perhaps a self-protective mechanism. Ultimately the Complainant has to be recognised as a reluctant complainant within the external investigatory framework. 

I have reserved my position until now to comment on the of the delay regarding the possession of the tapes and their eventual submission to the WRC process. I had no idea what event triggered their release first day in March 2021 as I admitted the tapes at the top of the present case and worked with them from there.

I sought and secured some real time commentary on how the audios may have emerged. The Respondent said they were sent to them “out of the blue “The Complainant was unconvincing on their delay in her evidence. The Respondent presented as simply incredulous on the delay in release and was strongly of the view that an earlier release might have generated a different outcome. 

For my part, I take on board Mr Zs commentary on the first day of hearing, when he remarked that a covert recording may well place the power in the Recorder. I agree with him as time and time again during the audios, the complainant steered the conversation away to match her goal of securing evidence.

Once again, I comment that I have found that the complainant seems to have got lost in her own case. I find that she was obliged to seek to enter those tapes in the external investigation or even in the appeal framework in continuation of her conversation with Mr Z,

Parties in this case must be aware that they are obliged to present evidence with all cards “face up “and from the outset.

The retention of the tapes beyond those fora was in my opinion a misplaced strategy, unjust and illogical. I am sure those tapes could have had a definitive and restorative impact much much earlier. rather than planning to save them for an unnamed Court outside my jurisdiction. 

I am mindful of the Respondent chronology where the tapes were released in March 2021. This prompted a further suspension of Mr F, who sadly died some weeks later in tragic circumstances. He did not provide Mr Z with any last statement on the matters in this case.

In again suspending Mr F and calling a fresh investigation, I find that the Respondent acted responsibly. By then, the Complainant had not worked with him for over 18 months, and I found that the Respondent followed the Company Policy. I would make a remark that some inequity has accompanied the complainants paid sick leave of two weeks in September 2019, whereas both periods of suspension were fully paid to Mr F. This may be something the parties may wish to engage on in time. 

Another compelling aspect of this case has been what I will refer to as “By standers “who honestly interpreted the workplace interactions of the Complainant and Mr F as a fledgling affair. they were Mr B, who I did not meet, Mr A and Mr Z. The Complainant equally referred to the rest of the workforce as bystanders and rumour mill. She was very troubled by the thoughts of this grouping.

 I would have liked to see a “By Stander Intervention Policy “in this situation which may have provided an opportunity for the by standers to act to distinguish their perceptions of an affair as opposed to sexual harassment. I appreciate that it is a new preventative tool in the world of equality and diversity, but nonetheless a useful deciphering and a discreet tool. I am guided by that in my clarifications from the complainant who told me that she had chatted with Mr B and had not expressly sought his intervention.

It was also apparent that Mr Fs family member was an employee seeking support. 

. In order to avail of the defence, the employer must demonstrate that preventative measures were taken before the occurrence of the offending conduct, occurred. The taking of post hoc action in response to a complaint does not make out the defence. 

I have found that the Respondent can rely on the defence contained in Section 14(A)(2) of the Act when they took steps that were reasonably practicable to prevent Mr F from sexually harassing the complainant by the overarching policy and correct application of this policy which sadly did not enjoy the complainant confidence at the formal investigation she had agreed to. The Respondent has welcomed the Complainant back to work . 

Section 14A (2) provides an employer, who would otherwise be liable for harassment by application of subs. (1) of that section, with a full defence in defined circumstances. 

I find that those defined circumstances are at play here. The Respondent followed the company procedures and sought to investigate a claim of sexual harassment and harassment advanced by the Complainant. I have found that the complainant did not maintain a   presence in that complaint and this self-imposed exclusion was to her detriment and thwarted the effectiveness of these Policies. 

On balance, I fully accept that she was hurting during this period and that may be the real reason for her reluctance and misplaced anger towards the respondent.

There is no one in this case who can walk in the complainants’ shoes except her. She has clearly struggled in that journey but  has demonstrated  a courage and dignity in her return to a supported workplace.

I am hopeful that the parties in this case can build on the complainants return to work .and that the Complainant can rehabilitate back to work to her original hours of work.

In conclusion, I fully accept that the Complainant experienced Sexual Harassment in the course of her work. However, I cannot fix liability for this against the Respondent on this occasion.

The Respondent can rely on their submitted defence. 

I have not found that the complainant was harassed outside of the presiding sexual harassment. 

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the complainant experienced sexual harassment in the course of her work, However, the Respondent can rely on the defence permitted in Section 14(A) (2) of the Act as they took reasonable steps to prevent the harassment, to prevent the victim from being treated differently in the workplace or in the course of her employment and to reverse the effects of the harassment .

I have not found that the complainant was harassed outside of the presiding sexual harassment.

The Claims of discrimination on gender grounds are not well founded.

Discrimination on Gender, Harassment, Sexual Harassment

Complainant

Respondent

Anonymised Parties

A Store Assistant

A Store

Representatives

Catherine Mc Loone BL, instructed by  Dermot G. O'Donovan Solicitors

Tiernan Lowey, BL instructed by  CC Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00048223-001

21/10/2019

This case was assigned to me for a de Novo hearing in the aftermath of the legislative changes which evolved for the WRC following the Supreme Court case of Zalewski v Adjudication Officer (WRC) IESC 24, namely The Workplace Relations Miscellaneous Provisions Act, 2021 on the administration of oath. /Affirmation.

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

This case involves a number of complaints raised before the WRC on 21 October 2019. The Complainant, newly represented by Ms Catherine Mc Loone BL instructed by O Donovan Solicitors submitted that she had experienced gender discrimination, harassment and sexual harassment related to her gender during the course of her work. The case has been assigned a new case file from the previous case number ADJ 24958.

The Respondent operates a Supermarket grouping and was represented by Tiernan Lowey BL instructed by CC Solicitors. The Respondent has denied the claims.

The Complainant has lodged a second in time Personal Injuries case in April 2021.

I met with the parties by remote platform for the first time on October 26, 2021. I prepared for the hearing by review of the complaint form, and both primary written submissions. There was no record on file of evidence heard in ADJ 24958.

 I learned that on the previous Friday, the Complainant had presented impromptu to the Store seeking a return to work from a period of extended sick leave. The Complainants Representatives confirmed that she was not being paid by the Respondent when she lodged her claim before the WRC.

I facilitated a request to allow the parties time apart from the hearing to have some discussions. I was mindful that the Complainant had newly appointed representatives and some issues might be netted.

The case resumed, where a number of Preliminary Issues were raised by the Parties.

Application to admit 4 tapes into evidence:

1. Counsel for the Complainant sought the 4 recordings in the Complainants possession be heard in the context of the Complainant evidence. Counsel for the Respondent argued that these were surreptitious mobile phone covert recordings, which were inadmissible.

The tapes transcended the period 27 May 2019 to 28 August 2019. Counsel for the complainant submitted that issues had arisen regarding a flawed internal investigation and the tapes would provide a corroboration for the complainant’s evidence. She had been unable to retain data on her personal mobile phone as the phone was in use by a relative.

The Complainant had been denied an opportunity to test the evidence of Mr F in the case. CC TV Footage   at the Store would have been deleted. The Complainant had offered this information early in the case and the Respondent had chosen not to accept it.

The Respondent argued against the inclusion of the tapes, which were recorded without consent of either participant or were completed sometime before the complaint was lodged before the WRC. During that time, the Respondent had activated a number of investigations into the complaint of sexual harassment in addition to alerting the Gardai of the occurrence. The Complainant had not participated in these investigations.  The Respondent had sought to align the tapes with the Internal Investigations and had not rejected the tapes.

The Respondent expressed an unease at the way the tapes were suddenly deposited at the WRC during the hearing in the earlier case ADJ 24958. The Proprietor of the business raised doubts on authenticity and remarked that a covert recording was unreliable as in his opinion the person who taped the conversation held power over the direction of conversation.

The Respondent clarified that one of the two participants in the surreptitious recording, Mr F had since died in April 2021. The other participant, Mr G was a Manager at the Store and a witness in the case.

The Respondent took issue that the complainant had informed Ms S, the Appeals Officer, that she was retaining these tapes” for Court “and had not formally aligned them to the case prior to April/ March 2021.

Both parties made legal submissions in support of their respective positions.

 2 Application to hold hearing in private:

Counsel for the Respondent requested that the case be held in private in circumstances where the employee accused of sexual harassment in the case was now deceased. He asked that the WRC take account of the unique elements and sensitivity of the issues at hand out of respect for the family of Mr F, who also worked at the store. The Respondent had approached the case assuming it was to be held in private.

Counsel for the Complainant wished the case to run in public.

3 Clarification of De Novo Hearing

Counsel for the Complainant expressed some concern regarding a De Novo hearing. She said that it would place the Complainant” on the back foot” in terms of elongated time frame leading to further distress.

 She accepted that the case would run on sworn evidence but requested that decisions already made without evidence should stand. (Reference to recordings) On probing, Counsel confirmed that no clear precedent existed for this suggested “hybrid “approach.

Counsel for the Respondent was unwilling to contemplate a suggested hybrid approach and submitted that De Novo meant from new and was a reasonable way to proceed

The parties confirmed witnesses for hearing as

1. The Complainant, accompanied and supported by her father, but who would not be a witness and who expressed a wish for resolution.

2 The Respondent, Mr A, Proprietor, Mr A Manager, Ms H, Human Resource Contact, Ms Y Appeals Officer

I took some time to consider these three Preliminary Issues.

 I noted that that the Respondent did not operate a Policy on covert reporting, outside of a short reference in the Disciplinary Policy.

At the conclusion of Day 1, I addressed the parties:

1.        That the hearing in the case would be a De Novo Hearing, to be held afresh and in private, having regard for special circumstances. I reflected those special circumstances were not defined within Section 4 of the Workplace Relations Miscealleaonus Provisions Act, 2021 but, in exercising my discretion, I was influenced by the sensitivity of the issue. My objective was to promote and host a secure environment to enable all parties to give evidence.

2.       I explained that the case had been assigned to me following a recusal of another Adjudicator and that I could not walk in the shoes of the previous Adjudicator or truncate the file. It was a new beginning, a new file, a De Novo hearing   and I would work independently, impartially with fairness to both sides. The decision in the case and names of Witnesses would be anonymised.

I confirmed that I recognised the sensitivity of the subject matter in the case and would accommodate the complainant in giving evidence in private.

3. I permitted the inclusion of four audio tapes secured without consent by the Complainant, which were scheduled to be played in the aftermath of her oral evidence and prior to cross examination.

 I explained that the permission was a qualified and guarded admittance as I had been assured that those tapes “constituted the sole application for admissibility of evidence”. I took note that references to (social media/Snapchat) had not been retained. Transcripts of these tapes were to be agreed between the parties and submitted prior to the resumed hearing. I was mindful that the Complainant carried the burden of proof in the case.

Both parties were then invited to make written submissions on consent and to tender medical evidence as the next step in the process of hearing.

The parties agreed to proceed on that basis.

 I wrote to the parties on November 1, 2021, with a summary of my preliminary decisions and confirmed that an earlier complaint of Victimisation had been withdrawn by the Complainant.

I made a formal request for:

1 Organisational Chart

2 Floor Plan of the Store

3 Human Resource Booklet

To assist in my investigation.

In the interim and prior to the resumed hearing dates of 24 and 25 January 2022, the parties submitted agreed submissions. I received an agreed transcript of the phone recordings which were contextualised and played on conclusion of the Complainant evidence.

On the conclusion of the hearing in the case, I sought supplemental information on rosters, annual leave, sick leave for the complainant, acceptance of an offer to provide a usb of the audios.

I received this requested documentation, the last of which appeared on February 25, 2022.Each party was copied in on the detail.

The Complainant has been employed as a store assistant from 17 September 2012. She was paid €319.19 gross for a 33-hr week.

By the time of the second day of hearing, the Complainant had resumed work following an extended sick leave. She had returned in mid-January 2022 on a medically advised 1–2-day basis. This ran in conjunction with Disability benefit arising from the extended sick leave. Counsel confirmed that the Complainant continued to rely on supportive medication.

Counsel for the Complainant submitted that she had been subjected to severe sexual harassment and harassment on grounds of her gender by Mr F, A Supermarket Manager over the period December 2018 until 30 May 2019.

Counsel submitted that the Complainant had been recipient of unwelcome and offensive verbal harassment in the course of her work, December 2018 to May 2019. She had been witnessing to a number of lewd acts by Mr F, which she sought to stop. She was uncomfortable working with him and felt humiliated and degraded.

Counsel referred to Mr Fs practice of sending sexual photographs and videos to the Complainants phone to which she did not reply.

Counsel argued that the whole event had been preventable as the Respondent had been aware of the existence of this behaviour throughout and became formally aware on August 26, 2019. The Respondent had not assisted in prevention of sexual harassment and could not now rely on the defence contained in Section 14(a)

In May 2019, the Complainant informed Mr F that she was going to report this behaviour to the Store Manager. She was requested not to take that course of action as Mr F was concerned about his job.

After this, Counsel submitted that Mr F distanced himself from the Complainant and he did not engage with her in the course of her work at the store. He ignored requests issued over the store microphone and her work pattern was altered.

The Complainant reported the matter to the Store Manager on 26 August 2019 who told her he already knew about the sexual harassment by Mr F, and she ought to leave her employment.  Disappointed by this approach, she then sought out the Store Owner and reported the matter to him.

The Complainant commenced on certified sick leave on 30 August 2019. She provided a written statement to an external Human Resource Specialist on 6 September 2019. The complainant co-operated fully. It was the Complainant case that she was not believed, and Mr F was believed over her.

Without notice or explanation, a subsequent Investigator was appointed, and the Complainant was provided with two different reasons for the switch in Investigator.

1.       The first Investigator had recused herself due to the sensitivity of the topic.

2.       The first Investigator had previously worked for the Respondent and lacked independence

A fresh investigation commenced through carriage of the complainant’s notes, previously assured as private and confidential. These were incorporated into the second investigation.

Counsel explained that the complainant had taken issue on a stated procedural inequity when she attended to meet the second investigator who was attended by Ms H, the Employee Relations contact for the Respondent, who took notes. This was not reciprocated for Mr Fs attendance.

The Complainant expressed her dissatisfaction at the lack of fair procedures and sought an appointment of a new Investigator from the external Human Resource Company. As this was refused, the Complainant did not participate in the investigation.

Counsel drew on the case law in

Nail Zone ltd v A Worker EDA 1023 and A Store vs A Worker, EDA 163, as jurisprudence for assessing and identification of Harassment. She went on to remark that the defence open to the Respondent in Ss 14(A) (2) and 15(3) of the Employment Equality Act is not accompanied by a definition of “reasonably practicable “was moot when consideration was given that:

No steps taken by the Respondent, its servants /agents, even when it was well known in the Respondent premises that there was an issue in relation to Ms Fs conduct towards the complainant

This fell short of the test outlined in A Worker v A Hotel [2010] 21 ELR 72, where the Labour Court pointed to the need to take such steps as are reasonably practicable to prevent harassment rather than measures taken to prevent a reoccurrence of harassment.

Counsel contended that the workplace was void of policies and the Respondent had no understanding of the correct procedural pathway to follow on foot of the complaint.

The Complainant was seeking a finding that the complainant was sexually harassed in terms of the Employment Equality Acts 1998-2015 and an award of compensation. she also sought an order for staff training and implementation of a Policy on formal investigations.

In response to the Respondent Counsels opening remarks, Counsel emphasised the test of “Reasonably practicable “She argued that the Respondent had not had a Policy in place commensurate with issuing of the Complainants contract, had not adopting training or preventative measures on sexual harassment.

She expressed a shortcoming when Mr F was not listed as a witness in the investigative process and the Complainant had been met with an instruction to find a new job.

Response to Preliminary Issue:

Counsel for the Complainant denied any failure to comply with the statutory time limits applicable. She emphasised that the issue in the case was one of sexual harassment and discrimination runs from the date of last accusation and forms a continuum.

She referred to the Supreme Court case of Louth VEC and a 2012 Peer Review by then Marguerite Bolger SC, where separate manifestations of linked conduct form a continuum

Evidence of the Complainant under oath:

Prior to the commencement of evidence, the Complainant sought to retain her father’s presence for the duration of her evidence. The Respondent sought the inclusion of all witnesses.

The Complainant agreed to Mr Z presence. The Respondent objected to the retention of the Complainants’ Father as he had not accommodated the investigation.

I gave some thought to the parties’ submissions and in particular Counsel for the Complainants advocacy on the vulnerability of the witness and I re-affirmed my earlier position that I would hear the complainants evidence in camera. Mr Z would be permitted to attend to instruct Counsel and the Solicitor for the Respondent to take notes. All Legal Representatives remained present.

The Complainants father agreed to step out to facilitate evidence.

It is important for me to reflect that I observed that the Complainant struggled in giving her evidence. On a number of occasions, she broke down and on other occasions, she displayed an enormous anger towards the Respondent. I am grateful to Counsel for the Complainant for her skilful management of the Complainant which, in time assisted me in capturing her important evidence.  While I facilitated breaks in evidence, I noticed a marked change in the Complainants demeanour, which moved from anger to a quieter engagement.

At the conclusion of her evidence, the complainant asked if she could make an adhoc remark. I asked for relevance and the Complainant made an unsolicited disclosure that was not relevant to the core case. I have assured both parties that I have disregarded this in my findings.

The Complainant told the hearing that she had commenced work after school in September 2012. She stated that she had been sexually harassed on several occasions by a Manager, Mr F, between the end of March and April 2019.

She recalled that she was emerging from a 3-year relationship, when she was kept back late at work, leaving her and Mr F alone in the shop. Mr F made lewd comments of a sexual nature which she promptly rejected and asked him to refrain.

Mr F relied on sexual undertones in conversation and was suggestive in conversation. She reminded him that he had a wife and asked him to consider “what if your wife came behind you now? “Mr F was non plussed and “let on that nothing had occurred”

She confirmed that she had completed a few hours of Induction on commencement of her employment. This did not incorporate sexual harassment “just no bullying “She had received but not retained the staff handbook. She had not received training in sexual harassment. She alluded to the Human Resource Officer practice of presenting sheets to sign and hand back to the office, for example on cigarettes or being underage. The Complainant said that she had not participated in ongoing or regular training in sexual harassment 2012-2019.

The Complainant clarified that Mr F and her had been friends and the unwanted behaviour had started in December 2018. She was unclear on dates but referred to being told “sexual things “which both offended and disgusted her.

Incident One:

March early April 2019

The Complainant was working on check out after 10pm and the shop was closed. Mr F asked her to help him out with the cash and began flirting. They both went to the Office and the Complainant was relieved when nothing untoward occurred.

The Complainant then observed that Mr F had exposed himself to her and professed his interest in her. The Complainant said she was “gobsmacked” and reminded him of his family. Mr F tried to kiss her, and she became scared and shouted stop in a loud voice.

The next day, the Complainant was working near Mr Fs family member when he greeted her. she told him that what happened could not re-occur. Mr F dismissed this and told her that she would have given in if 5 more minutes had passed. The Complainant said she felt worthless.

Mr F adopted a practice of texting and calling her in addition to inquiring for her through friends and social media. This changed when he began to transfer dirty pictures through messages which quickly disappeared in a few seconds.

Incident Two

The Complainant recalled receiving a social media picture of a “hard penis “on her dinner break. This was accompanied by a lewd and suggestive message from Mr F. On her return to work from half hour break, Mr F said nothing and neither did she. She felt uncomfortable working with him and was relieved when other Managers were assigned to closing duties.

Incident Three c 4 May 2019

The Complainant had finished her work and asked Mr F if she could leave earlier than her 4pm finish. The Driver assigned to home deliveries was leaving an hour earlier. Mr F said he would assess the shop activity.

Shortly after 3pm, the requested departure time, Mr F approached her requesting assistance to bring out stock to the Off Licence. She waited on a steppingstone and was using her phone. Mr F exposed himself to her and approached her before she strongly rebuked him and walked out of the shop. Mr F tried to bargain with her for sexual favours to facilitate her early finish. The Complainant told him that “he was twisted “

The Complainant was on leave for a week and formed the view that she was in a difficult situation, but she did not have proof of what had occurred at the store. She returned to a store where rumours were escalating about her.

The Complainant recalled having to re-assure Mr Fs family member and work colleague that she had not “been with “Mr F. This was accepted. This colleague told the complainant that she was upset by disclosures on a mobile phone and that Mr F had told her that he was texting the Complainant. The Complainant said she hugged the colleague.

Sometime later, the Complainant approached the colleague and re-affirmed that she wasn’t having an affair with her family member. Her colleague told her that Mr F had come clean, she apologised for him and thanked the complainant.

The Complainant felt unable to confide in her own family. She did not have proof and discussed with a friend outside of the business. She felt overwhelmed by Mr Fs status of Manager to her role as Store Assistant.

She proceeded to record   Mr F on her phone on 27 May 2019. On that occasion, Mr F had told her that if she ever ventilated the occurrences at work, “his life would be over “.

The Complainant stated that she confided Incident 3 in another Manager, Mr B that Mr F had been carrying on inappropriately” trying to get with me “. His response was one of disgust and he told her “Tell someone “As if she was his daughter, he would want her to do that.

Background to Tape one

Mr F called her into office. The Complainant told him that she “was going to tell “on three occasions. Mr F told her that he had told Mr A that he had been inappropriate. Mr A had not approached the Complainant and she wanted it to “go away “(7.23 mins)

Mr F became more remote. The Complainant started on lates. She used to do long days. Mr Fs family members finished at 2.30pm.

On Monday, August 26, 2019, she recorded a conversation (25 mins) with Mr A. she was sick of things.  She had met him earlier that day.

She recorded a subsequent conversation(7.34mins) on August 28, 2019. She was treated inconsistently during these conversations. In the morning of August 26, she found that Mr A wasn’t going to do anything, by the afternoon, his language had become more respectful, and he took notes. Mr A said that Mr F was “getting help “The Complainant was unaware that he knew.

The Complainant felt justified in activating the phone recording “to get a bit of evidence to back up the truth “She described herself as angry and hurt.

The Complainant confirmed that Mr A offered her time off and told her to write everything down. He confirmed that he had not been familiar with the procedures earlier and just told her to go and get another job, that “the change would do me good “By then, the late shifts were getting too much, and Mr F was unprofessional in ignoring her.

The Complainant relied on her sister’s staff handbook of 2009, which was blanked on contact details in the Sexual Harassment Policy. She didn’t know who to go to May to August 2019.

The Complainant recalled that Mr A had called her 1-2 days post their conversation. He had become more serious and advised her to deal with Ms H. The Human Resource Officer, who was female.

The Complainant sought out the Store Owner on the Friday. She told him about the sexual harassment and abuse and said that she was leaving the workplace. He asked her if she was aware of the distinction between a joke and sexual harassment? She replied that the behaviour she had experienced was not “craic” and was “not wanted “She said she formed the impression that he was “going to act “he said that he would be in contact on whether formal /informal pathway would follow.

Mr Z did contact her the next day and asked her to come in to sign a statement, but she didn’t go.

She subsequently met with Ms HR1, the Investigator who met with her and assured her that she would get to the root of it, through both sides of the story. The Complainant compiled and submitted a statement. She expressed a confidence in Ms HR 1 and stated that she did co-operate.

Mr Z wanted her to go to the Gardai. He told her that he had met with Mr F who had expressed an apology.

The Course of the investigation altered when without her knowledge the Investigator was replaced by Ms HR 2 and a new investigation was announced. Ms HR 2   relied on the statement compiled for the first investigation and the complainant was uncomfortable that she was to be questioned prior to Mr F. She was reluctant to answer as the Company Human Resource Officer was there. she was dissatisfied at the small pool of two witnesses and nobody in the shop was questioned. It was a one-way system, where the Proprietor and two Managers were interviewed. Mr A, or Mr B were not interviewed. 

The Complainant told Ms HR 2 that she wasn’t happy.

She raised the inequity in the scribe function where Mr F did not have a scribe present whereas she had.

The 13 findings did not confirm sexual harassment and the Complainant appealed the report. She felt disrespected.

She met with Ms Y, the Appeals Officer and asked why Mr A had not been interviewed? Ms Y asked her to outline what Mr A would say. Ms Y asked for the recordings. The Complainant told her that there was no trust, and she would be waiting “for Court” She confirmed that she had received Mr Fs submission to the Investigation. she was disappointed.

The complainant described a pattern of detachment where Mr F had ceased speaking to her, Mr A told her to go elsewhere, and Ms Y was against her.

The Complainant submitted that her medical fitness had not been assessed prior to interview. She had been under Medical Supervision at that time

The Complainant needed medical attention and was prescribed medication and referred for Day Care. She has relied on the medication “all through this “and she described that “she was still suffering and going through hell “Her mood was low, and her reality was of suicidal feelings and depression.

Cross Examination

Counsel prefaced his cross examination to the Complainant by acknowledging that it was a difficult case, and he was obliged to put detail to her of what the Respondent has to say. He reassured the Complainant that she could seek a break when necessary.

Counsel focussed on the training received by the Complainant on sexual harassment during her work tenure. The Complainant was unable to remember the duration of that training but recalled a 4–6-hour commitment. She did recall that from Day 1, she had been informed that bullying was not allowed. She was unaware that she was to seek out Ms H as detailed on specific pages of the staff handbook. She recalled that the training was a “fly through with slides “and was not accompanied by forms or detail on sexual harassment.

She re-affirmed that she presumed she had received a 2009 handbook but could not find it and borrowed her sister’s version who started in 2016. Ms H was not mentioned as contact person in that version.

The Complainant disputed that she had been offered a copy of the handbook with her contract in an envelope in 2018. She attested to the presence of named Policies in Poly Pockets at Canteen but added that “they were not there before “she denied they were on the Noticeboard or distributed widely.

The Complainant confirmed that she had referred to what had occurred as sexual harassment on the recordings. She had told the Manager, Mr F to stop.

She relied on the phrase “mine was truth “when she countered that the Respondent had sought to sweep things under the carpet.

In answering Counsels query as to why the delay in acting on her records.? she said that it had been difficult to secure the relevant evidence. she was scared and ashamed. She said that it took her a while to go to Mr A, who she attributed with linking the investigation process.

The Complainant disputed Mr A’s stated latter day awareness of the sexual harassment as she believed that he knew of the rumours in May 2019.

The Complainant confirmed that she had given her statement of events to Ms HR1. She was aware of Ms HR2 involvement and Ms Y but had no recall of the appointment of a 4th Investigator on foot of reception of the recordings. Counsel said that was extraordinary as Mr Fs death had followed the submission of the recordings.    

The Complainant said that she was unaware that Ms H, Mr F and Mr Z were all out of the Business on August 26, 2019.

The Complainant accepted that Mr F had been attentive to her earlier medical needs but refuted that he was an excellent manager.

The Complainant clarified that she approached Mr A on August 26 to tell him what was wrong and “to keep an eye on Mr F”

She disagreed that Mr A had met with Mr Fs family member before end of May 2019 regarding an exchange of text messages. She accepted that she was asked by Mr A to commit the occurrences to writing, albeit on the second meeting.

The Complainant again disputed that Mr A only learned of the occurrences from her on August 26, she stated “he knew previous to that “She also denied that he was “in listening mode “at the meeting, which was the first occasion in which she had spoken out.

The Complainant confirmed the details of the occurrences which she had experienced. She concluded that Mr A had not responded appropriately.

The Complainant submitted that Mr F had told her that Mr A had an awareness of what had transpired between them, which was not an affair.

She did not accept that Mr F may have told her of Mr A’s awareness to serve to deter her making a complaint. She stated that Mr A knew through Mr B.

The Complainant had not retained notes of the first meeting. She clarified that she had been on leave the week preceding and approached Mr A outside of her working hours.

The Complainant became upset at this point, and I sought to reassure her by restating that I was seeking to establish facts in the case. I appealed to the Parties to protect the process of cross examination underway.

Counsel for the Respondent put Mr A s effectiveness as the first point of contact for the Complainant. The Complainant emphasised that Mr A adopted two different approaches at both meetings, the second of which she recorded. She described him as unsupportive at the first meeting followed by a supportive approach at the second meeting. She accepted that Ms H had been positively suggested as a support but added that she felt she didn’t have a choice in this and was not told her rights.  The Complainant accepted that Mr A had told her that this was his first experience of a reported sexual harassment in 33 years’ service. she did not accept that Mr A interpreted the circulating rumours in the store as a private matter.

The Complainant attributed Mr Fs family member as the validator of her rebuke to Mr Fs approaches.

 Counsel challenged the Complainant on her marked delay in reportage while in possession of proof via the recordings from May 27, 2019. The Complainant placed the context of delay in her reportage to Mr Fs pleadings that he was fearful of disclosure as if that happened, he would take his own life.

She rejected the premise that Mr F did not manage the rosters as he had excused her from the roster to accommodate a hospital visit previously.

Counsel then addressed the introduction of the issues to Mr Z on the Friday after her meetings with Mr A. She was clear in her stated distinction between “craic and sexual harassment” She confirmed that she approached Mr Z as she wanted Mr F disciplined and a written apology.

Mr Z told her that he wanted her to make a statement and denied that he thanked her for reporting. Mr Z pointed to it “being too big a case for him “She did not receive an invitation to meet Ms H. She did not come in on Sept 2 as requested due to illness. The Complainant confirmed that she offered the recorded evidence to Mr Z, but he did not accept them. He said that it was illegal to record, and he may be involved in a Disciplinary procedure. She accepted that Mr Z did offer to accompany her to the Gardai.

In addressing the 6 Sept attendance at Investigation. The Complainant was accompanied by her father and gave an account of what had occurred to Ms HR 1. The Complainant argued that she was entitled to hold on to her written statement when the investigator was changed over her head. There was no written clarity on the swop.

She denied receiving Ms Hr 2 letter of 4 October. She confirmed that she had met with Ms HR2 in October but was unhappy with her attitude when she put certain questions to her. She found that she was biased. She wanted a new Investigator. The Complainant was very confused on the chronology of the investigative process.

The Complainant had no recollection of the terms of reference.

The Complainant recalled the January 3, 2020, outcome meeting.  She requested that Mr A be interviewed but did not receive an answer.

By then she was under medical care and appealed the Investigation. The Complainant responded in saying that she was seeking a proper appeal and wanted to re-start without someone quizzing me about my statement

At the appeal, Ms Y asked her what evidence Mr A was likely to lead on? The Complainant did not capture likely evidence but stated that he was likely to lie like the rest of them.

The Complainant expressed a strong view that her handwritten statement should not have been shared between investigators.

The Complainant offered a number of clarifications on the logistics of the floor plan of the store. She confirmed that Mr F had confirmed that he had discovered her newly single status in December 2018 on a social media platform. She had not retained notes.

The Complainant confirmed that she at home when she received a lewd picture.

She was not a participant in staff appraisal or staff communication meetings.

The Complainant confirmed that her confidant prior to recording the 4 tapes was a friend and not an employee at the business.

The Complainant identified that her preferred outcome was a finding of truth and that wrong was done to her.

She confirmed that her approach prior to the recordings was casual and impromptu. She did not introduce the purpose of the meeting.

I probed the purpose of her communication with Mr B and the Complainant told me that it had been a chat and not a meeting and lasted 10-15 minutes.

She confirmed that she had spent 1 hr each with the Investigators and 40 mins with Ms Y.

She wasn’t aware of the overlap in her complaint being lodged with WRC during a live Investigation.

Conclusion:

In closing, Counsel submitted that the complainant had satisfied the burden of proof necessary in the case.

 She relied on the application of A Worker V A Hotel, where the Labour Court stated that an employer is obliged to take such steps as are reasonably practicable to prevent workplace harassment. It is not sufficient to show that measures were taken to prevent a recurrence of harassment after it had taken place.

Ms Mc Loone concluded the Labour court case A Shift worker applied, as it stressed that an excellent policy had to be accessible and operative which was not the case here.

The Respondent operates Family Business comprising of supermarkets. The Complainant has been employed as a Sales Assistant since September 2012 on a part time basis reflected in a series of contracts, the most recent 5 November 2018 which cross references the employee handbook. This readily available document hosts the Policy on Bullying, Harassment and Sexual Harassment.

The Respondent has denied all allegations.

The Respondent received a complaint of sexual harassment from the Complainant to Mr A, store manager on 26 August 2019. The complaint was made against Mr F, Deputy Manager, who was on leave on that day.

Four days later, the Complainant brought the matter to the attention of Mr Z, Store owner. The Respondent noted that the matters complained of were alleged to have occurred three months prior to the date of reportage.

Mr F was placed on paid suspension pending the outcome of a full investigation. The Complainant went on certified sick leave and returned to work on a supported basis in January 2022.

The Respondent case reflects a disappointment that the complainant decided against participation in the formal investigation which she herself had elected to pursue. The Respondent operates a Policy on Bullying, Harassment and Sexual Harassment which serves to deter this behaviour in addition to providing an investigative process which respects the rights of the subject of the complaint and the complainant.

The zero tolerance to sexual harassment is imbedded in the Induction process which was provided for all staff.

The Policy provides that a complaint “will be treated seriously and with due regard to the sensitivities of the complainant and to the rights of the person against whom the complaint has been made “  

The Respondent submitted that the Policy was respected and adhered to in the processing of the complaint at the centre of the case.

The Respondent first became aware of complaints of sexual harassment on 26 August 2019 and denies the Complainant contention of a much earlier awareness. They note that this reference to a prior awareness was not mentioned in the written complaint of September 2019.

The Complainant acknowledged that Mr Z had addressed the matter and she was grateful for this.

On first disclosure to Mr A, Counsel emphasised that the complainant had canvassed Mr A for his view and asked that he not inform Mr Z. She then sought out Mr Z and informed him. This prompted immediate and firm steps to address the matter through the formal pathway.

Mr F was suspended on his return from leave on 2 September. This lasted 6 months and he never returned to the store.

An external investigation was commenced 6 days after the request for formal investigation was received.

An Investigation   commenced under Ms HR 1. The Complainant submitted a statement and attended for interview. Subsequently, Mr HR1 recused herself from the investigation.

Mr Z telephoned the Complainant on 16 September 2019 and texted the Complainant on 23 September in addition to communicating with the Complainant’s father.

On 4 October 2019, Ms HR2 invited the Complainant to attend investigation. The Complainant attended for interview on 9 October with support of her father. She chose not to proceed as her father requested as a pre cursor

1 written confirmation for recusal of Ms HR1

2 why the statement signed by the Complainants’ father was passed on from Ms HR1?

3 Whether Mr F had been formally informed of the reason for suspension?

On 10 October 2019, Ms HR2 provided the stated reasons for recusal, confirmation of the passage of the complaint between investigators and confirmation that Mr F had been provided with the reason for suspension as arising from allegations of a sexual nature.

The Investigator sought to reschedule but was unsuccessful as the Investigator was met with an allegation of bias from the Complainant. She did not participate in person or by telephone.

The Complainant has taken issue that Mr F had been allowed to give his response without a scribe and she had Ms H as scribe. It was open to her to seek to present without a scribe. Mr F did not give his response until November 5 and the Respondent does not accept the viability of an accusation of bias to that end.

The Respondent did not agree to allocate a third Investigator as there was no rationale for the allegation of bias or no prejudice experienced. The Complainant withheld the audio recordings from this investigation.

On 16 December 2019, the Investigation outcome issued. Out of 13 allegations, 10 were unsubstantiated and 3 were not upheld. The Investigator pointed to insufficient evidence to support the allegations put forward by the Complainant. She did record that she had found that the SOC and the Complainant had engaged in behaviour of a sexual nature without physical intimacy outside of the workplace but did not conclude that the behaviour was unwelcome or unwanted by the Complainant.

On January 3, 2020, the Respondent met with the Complainant to discuss the report. She was advised of her opportunity to appeal.

On 21February 2020, Ms Y conducted an appeal meeting, and the Complainant was provided with a full opportunity to state her case and provide relevant evidence. Ms Y found that the Complainant relied on having further evidence but did not submit it or provide a reason for not so doing outside that it was being retained for Court.

The Appeal outcome issued on 27 February 2020 and found that none of the issues raised went so far as to taint the overall conclusions of Ms HR2. Ms Y recommended that appropriate measures be put in place to facilitate a smooth return to work for the complainant. This was met with further medical certification from the complainant.

The Respondent submitted that the complaints lodged by the complainant were of a civil and a potential criminal nature and the Respondent had a duty of care to both employees at the centre of these complaints. The investigation was hampered by the absence of the complainant. The Investigation report was largely limited to the evidence of Mr F, whose evidence was not controverted. The Respondent was bound to accept that outcome.

The Respondent has sought to rely on the defence contained in S 14(A)(7) of the Employment Equality Acts 1998 -2015.

On evaluation of sexual harassment, the four components of

1 was the conduct of a sexual nature

2 the conduct was unwanted

3 violations of personal dignity

4 conducted created a hostile, intimidating, degrading environment

Counsel argued that all four ingredients must be in place to meet the definition of sexual harassment

Nail Zone ltd v A Worker EDA 1023, A Store v A Worker EDA 163, referred.

The Investigation Report upheld on appeal determined that the behaviour at the centre of the case was not unwelcome or unwanted and, on that basis, cannot amount to sexual harassment.

Counsel argued in the alternative that while sexual harassment is denied, the Respondent is not liable for the treatment as it took such steps as were reasonably practicable to prevent such treatment and/or to reverse the effects of any such treatment.

Reliant in SI 78/2002, Code of Practice on Harassment, the Respondent argued compliance through an active policy on sexual harassment and on the steps followed to prevent and reverse the effects.

A Worker v A Hotel [2010] ELR 72 and Atkinson v Carty [2005] ELR  1 at the Circuit Court

The Respondent concluded that training in sexual harassment was provided to all staff during induction.

They contended that they followed the pathway outlined in A Fast-Food Crew Member v A Fast-Food Outlet ADJ 8243.

The Respondent sought dismissal of the claims.

Preliminary Issue on Time Limits:

Counsel for the Respondent submitted a technical issue of time limits. He recounted that the cognisable period for the claims is 22 April -21 October 2019. The Complainant commenced sick leave on 30 August, 4 days post her discussions with Mr A. The WRC form was not particularised with dates, which was ultimately rectified in the Complainants submission of December 10, 2019.

Counsel reflected that the earlier allegations were not covered by the cognisable period and time should start from December 10, 2019.

Counsel responded to the Complainant response and accepted that the Respondent was on notice of complaints from 6 September 2019 but argued that the detail lodged on the complaint form was insufficient.

Counsel for the Respondent relied on written submissions and confirmed that they viewed the Complainants return to work as a positive development.

He submitted that the Respondent could only be judged on the material brought before them and re-iterated that the Complainant had withheld submission of the Audios in the case. He asked for a consideration of this delay.

The First Investigation was open to the Complainant and she was unreasonable in her nonattendance. There was no bias. The outcome was shared, and an Appeal provided.

The second investigation, prompted by the submission of the audios, carried an invitation to the Complainant to participate but events were overtaken by the demise of Mr F.

The allegations were serious in nature and Mr F had a right to respond to the tapes. The Respondent didn’t know how his response would have been framed in an investigative setting.

Secondly, Counsel submitted that the Respondent Policy provided a full defence. The Respondent was cognisant of the #Me Too prompted meteoritic rise of awareness of sexual harassment and the Operative Policy surpassed that of other companies.

It was the Respondent case that Mr A listened and acted compassionately on receipt of the complaint. He asked that the complaint be committed to writing.

Counsel stated that the Respondent Managers observed the Complainant and Mr F as “good friends “not associated with sexual harassment. A Family member of Mr F had raised the presence of phone communications exchanged between them, which the Respondent interpreted as “two consenting adults “

Counsel pointed to the time lag between May and August 2019, where the Complainant did not raise any issues in the workplace.

He emphasised that the Complainant had signed the Respondent Policy.

Counsel reflected that the Respondent had activated the Respondent Policy on Sexual Harassment once the Complainant had complained in August 2019. Mr W had reported the matter to the Gardai who sought contact from the Complainant as without that they couldn’t do anything

Counsel denied that the Respondent could be viewed as vicariously liable for the actions of Mr F as the Policy was universally available and operated.  He denied that the Complainant was directed to finding a new job. The Respondent had activated the Disciplinary procedure against Mr F and ultimately, he had been transferred to work in another shop. The Complainant had been advised by the Respondent to submit the tapes to the investigation.

Evidence of Ms H, Human Resources by Affirmation:

Ms H had an active role in human resources and health and safety in the Respondent store. She maintained a keen interest in the developments in the field and provides updates on current cases. She completed and scored highly in a Certificate in Bullying, Harassment and Sexual Harassment prior to the complaint.

She outlined the format of Induction which spanned almost a full day and outlined a zero tolerance on bullying, harassment, and sexual harassment. Staff were not permitted to work outside completion of induction.

 Ms H directed responsibility for reportage to staff. The Policies were placed at the back of the Health and Safety Statement. She denied that staff were asked to sign documents without reading them first.

She had reviewed and revised the Policies on completion of her course.  She was the identified contact person and the “go to “person for the Policies and Human Resources.

She watched out for staff welfare and confirmed that the complainant had previously sought her out when she was in difficulty. Ms H confirmed that the complainants’ contract was updated in November 2018.

In cross examination, Ms H confirmed that the complainant worked afternoons while she herself worked mornings December 2018 – May 2019. They work the same hours now.

There were identified male and female contact persons, and everyone received the same training. Mr F received training in 2006. Mr B had also received training. As updates and amendments unfolded, training was provided.

In addressing her role as scribe in the investigation, she denied that she was compromised in her attendance at the Complainants interview, while holding the dual role of contact person. She was not participant in the investigative process, and she had not been consulted by the Complainant.

She confirmed that Mr F had a contract but did not know if he had signed for the Policies referred to in her evidence.

She demonstrated that she had previously picked up a welfare issue involving the complainant when she had experienced and confided in her regarding a previous relationship difficulty.

She confirmed that Mr Z, Mr B, Mr F and Mr A were all trained in the sexual harassment policies.

She disputed the issue raised by the complainant that Mr A had not been aware of the policies when she said that she thought he had followed the policy.

She distanced herself from commentary on whether Mr B should have directed the complainant towards support and to formalise the complaint into writing, when she said that “I can’t speak for another person” on whether policy was applied.

Ms H assured Counsel that she was aware of appropriate intervention in face of “unwarranted conduct “where reportage and documentation should follow.

She confirmed that that the Policies were pinned to the notice board in canteen in 2019 and refresher training was provided.

Evidence of Mr A, Store Manager by affirmation

Mr A had been a manager for 15 years. He attested that the complainant was a good fit for the business and was “well able “.

He recalled 16 May 2019, as he had been at a Trade Fair the day before when he was approached by Mr Fs family member. She said that she had found texts on Mr Fs phone directed at the complainant. She was upset and Mr A advised against making decisions. she told him that “messages were going between them”

Mr A denied that Mr B had informed him of sexual harassment at the store. He confirmed that he had detected rumours and gossip during May 2019 which were indicative of an affair. He added that “it wouldn’t be right to go digging “

This was a first-time concern as before this he had observed that Mr F and the complainant “seemed to get on great “

He submitted that Mr F did not say anything to him. He denied that the complainant had informed Mr B of sexual harassment.

He recalled August 26 at 8.30 am. He was at the Off Licence door when the Complainant approached him looking down in mood. She said she was thinking of doing a course and he encouraged her. He was unaware of the subsequent recordings.

Mr A confirmed that he was thrown by the complainants’ disclosures. He had not come across it before. He was incredulous and his objective was to formalise the complaint in writing and provide a female support presence. He was aware that Ms H was on annual leave. He disputed avoiding dealing with the issue and knew that he had to manage what was “awful serious “against a duty of care to both employees.

He was aware that the Complainant addressed Mr Z afterwards.

He was part of the two-person team who subsequently suspended Mr F on September 1. His objective was to get the Complainant looked after properly.

During cross examination, he confirmed that he had been inducted in 2007. He was unsure whether this was updated, but he did not receive further training in sexual harassment. He worked with Ms H on the handbook.

He re-affirmed that he was not aware of the sexual harassment in May 2019.

He confirmed that on May 16, 2019, he and Mr Z had cause to sit down with Mr F when he received the visit from his relative. This addressed the text messages alone. Mr F did not disclose any detail but did confirm that he was looking for a place to stay. The Complainant was not discussed, and Mr A re-affirmed that he believed that an affair was occurring between them. He believed that it was not his business to quiz.

Mr A told Counsel that the meeting on 26 August was unplanned at 8 am. He re-affirmed a discussion on a course and denied that she had asked to chat. He was unable to identify the course discussed.

He was unclear of the composition of the first meeting which lasted 10-15mins.

He reaffirmed that this was the first occurrence of reported sexual harassment and had been taken off guard and thrown by the complainants’ disclosures. He had not retained notes. He contacted Mr Z soon after.

Mr A confirmed that he worked on Fresh Division and Mr F worked nights, which was typical for male staff. If a female member of staff was closing, she was advised to work with one of those lads and not close alone.

Mr A confirmed that the Policies were not audited. He did hold Management meetings but did not operate an appraisal system. Mr Fs relative did not seek a course of action and he did not feedback to her.

Mr F had sought accommodation in the Shop flat

Evidence of Mr Z, Store Owner

Mr Z owned and operated 2 stores. He confirmed that the handbook with emphasis on training was universally applied within the larger grouping. The Handbook was audited annually. He confirmed that he had not previously dealt with the circumstances of a claim of sexual harassment.

He recalled that Mr A had contacted him while he was away on a course and informed him that he was dealing with a complaint of sexual harassment. He instructed him to action the Policy and the contact Person. He had not received detail.

He returned to work at 5pm on 30 August, when the Complainant knocked on his door and presented as being very upset. He had never seen her like this. He knew it was serious. The complainant recounted detail of the allegations of sexual harassment. He said he listened and disputed that he had downplayed the content when he sought to ascertain if the Complainant was aware of the distinction between banter and sexual harassment. He confirmed that he had set out the options on informal/formal approaches.

He recalled that on May 16, 2019, Mr F had approached him to borrow the shop flat which he had previously used. He said that he was having marriage problems.

Mr Z did not contact the complainant at this time as both she and Mr F often appeared in each other’s company and there was nothing to suggest that their interaction was not consensual.

Following his meeting with the complainant in August, he sourced her number. He actioned the policy, but he found that she was reluctant to proceed. she was afraid that a marriage break up would occur. She was very concerned regarding rumours about her. The informal pathway was not a viable option.

The Policy took over at that point and Ms HR1 was appointed to investigate. He was unaware of any indication that the complainant was not fit to participate in the investigation. He confirmed her absence was sick leave related. He was conscious of having to balance the rights of both employees.

It took six weeks before the allegations were placed before Mr F. He had been suspended on the premise that allegations were to follow. Mr F was subsequently disciplined for inappropriate behaviour. He received a written warning and relocated his workplace to another store.

Mr Z accepted that the Complainant had offered him the audios if he wanted to listen. He reflected that he may not have explained it well, but he was aware of the legal implications of such products and told her to hold onto them for the investigation as he anticipated that he would be participant in the disciplinary process.

On 11 September 2019, Mr HR1 stood back from the investigation and told Mr Z that the allegations were much more suitable for the gardai.

He called the complainant on that day and told her of the criminal aspect. Mr Z said that he received a call from the complainants’ father at 7.40 pm that eve and expressed concern. He wanted Mr F to come clean and sought a written apology. He said that he was not interested in the Policy, and they had an opportunity to sort it out.

Ms HR1 had responded to the objections of Mr Fs legal reps who had submitted that it was inappropriate that she be involved.  This was not shared with the complainant. Ms HR1 told him that the “case would go the distance “.

Mr Z sought to find a replacement for Ms Hr1.

He also went to meet two Detectives at the Garda station, who indicated they were prepared to assist. They told him to encourage the complainant to step forward.

Ms Hr2 was engaged on 18 September 2019.

The Investigation outcome meeting took place on January 3, 2020, and had to be abandoned as the complainants’ Father levied a litany of allegations at him that progression was pointless and the meeting concluded after 20 minutes. They were informed of the right of appeal, which was received by hand.

During cross examination. Mr Z denied prior knowledge that Mr F had been inappropriate towards the complainant. He clarified that the May 16 meeting had reflected that his wife had asked him to leave.

He said he was first made aware on 26 August 2019, either later that day or the following day. He pushed activation of the Policy. He clarified that the first time he secured detail of the allegations was during his meeting with the complainant on August 30.

He disputed referring to the Policy as wholly inadequate on 12 September. He did comment that there were criminal and civil aspects to the case.

Mr Z denied that there was a gap in training and that confirmed that Policies were “organic documents “a normal part of the business.

He confirmed that he had accepted Mr Fs legal team objection to Ms HR1 and that he had not mentioned that to the complainant. He told her that Ms HR 1 had recused herself and agreed that it was unfortunate to have to start over.

In addressing Ms H presence as scribe at the complainant meeting, Mr Z confirmed to counsel that he had requested that she take notes. the Respondent had not acted in defiance of the policy as Ms H had not been involved as the contact person. Mr F had sought her removal. The complainant had gone through the detail of her allegations with Mr Z.

Mr Z responded to Counsels questioning on the complainant’s fitness, when he said that the Respondent was not informed that she was unfit to participate in the interviews of the investigation. He denied saying she was not well enough to the named Gardai, who had pressed on him that it would be a difficult case to investigate but would need the full cooperation of the complainant.

Counsel put to Mr Z that the C complainant said she didn’t feel well on 14 October. Mr Z said she had met with Mr HR2 on 9 October.

Mr Z denied that the Investigation lacked substance or that sexual harassment occurred.

Counsel challenged the lack of visible consent to the changeover in investigators. Mr Z said that she was afforded the same process as Mr F, and she received all participant statements.

On September 2, Mr F was suspended, and he apologised for bringing this down on the company. He was remorseful.

Mr Z had interpreted the earlier interactions of Mr F and the complainant as an affair.

In redirect, Mr Z confirmed that he would not alter his approach on hindsight. He reflected that all trust seemed to disappear within the process.

He expressed the view that the audios did not in fact exist. Once they arrived, this prompted a fresh investigation. He met with Mr F and explained that further evidence had arisen. He was suspended.

A new Investigator was appointed, and terms of reference were in preparation a week later.

Mr Z became worried when he couldn’t contact Mr F. He contacted his family to ask if all, ok? The family mentioned they were going through the motions. Mr F took his own life the next day.

In responding to clarifications, Mr Z clarified that he didn’t feel that he could have intervened to bring the complainant to the investigation table. He attributed that role to Ms HR2.

When asked to identify the signs or symptoms which may accompany a culture of sexual harassment, Mr Z was unable to identify.

He clarified that Mr F had availed of the store flat for one night.

Mr F had not left him  a personal message before his death.

He had not considered broadening the investigation at the store.

Evidence of Ms Y, Appeals Officer

Ms Y outlined a considerable background in Law and Human Resource Management.

She managed the Appeal of the Investigation and did not grant a fresh investigation. She examined the procedures, checked for inherent unfairness, and invited the complainant to say anything or everything she had to say. She had the scope to grant a new investigation.

The Complainant confirmed that she was willing to meet Ms Y, who did not advance medical grounds.

Ms Y confirmed that she met the complainant and her father at 5pm on January 21, 2020, in what was a confrontational meeting with repeated interruptions. Her questions were not answered.

She described it at the most challenging meeting she had undertaken.

When seeking to ascertain the relevance of Mr A as a witness, the complainant said “he knew “and led her to believe that there had been another meeting. Mr A was a recipient of information and not a witness.

Ms Y declared that the complainant did not engage.

Ms Y looked for existence of other evidence. She addressed the topic of the audios which were withheld as she didn’t know what they contained.

She concluded that she had tried very hard to conclude the appeal. She reverted to Mr Z to address the switch of Hr 1 and Hr 2 process.

During cross examination, Ms Y clarified that the appeal was to address the outcome of investigations. This was detailed in an email dated February 21, 2020.

Ms Y disputed that the complainant could have formed the view that it was a de novo hearing.

In addressing Counsel probe on whether complainant should have been interviewed if not medically fit? Ms Y responded that There was absolutely no sign of ill health.

Ms Y was informed that the complainant was holding the tapes for court but would not clarify which Court.

In clarifications, Ms Y explained what she had meant in her recommendation to return the complainant to work as “to ease back in “

She clarified that the meeting was dominated by the Complainants father on a 60:40 mix and lasted one hour. She did not recall whether the complainant was on certified sick leave.

Ms Y explained that she had some concern on the appropriateness of the complainant’s father being present when matters of a sexual nature were discussed by his daughter. She clarified that no obvious accommodations were sought to assist the complainant, but she was mindful of the general reluctance in cases of such sensitivity.

Conclusion:

Inconclusion. Counsel submitted that in considering the burden of proof, the Adjudicator could not overtake the procedures completed by Ms HR2 and Ms Y and conclude that sexual harassment occurred. That would be grossly unfair to the subject of the complaint.

The Respondent has denied sexual harassment and can only be assessed on their Organisational knowledge.

The WRC process triggered the release of the tapes and the Respondent had been denied an opportunity to test this evidence.

He re-affirmed that the complainant had not participated in either investigation or appeal. she did not have plausible grounds to support her absence and there was no evidence of bias.

Of importance, he said that no reason had been provided for withholding the tapes and keeping them for Court. He submitted that had the tapes been produced earlier a different outcome may have occurred as his client had been denied crucial evidence at a fundamental juncture.

He summarised that the Respondent did everything possible to get to the bottom of the case and was not at fault. The Respondent operated a good policy, signed by the parties, who had completed induction which incorporated detail on sexual harassment. The Respondent hosted a contact person who was accessible, personable, and sensitive. The Respondent took the allegations very seriously and flagged a potential criminal element.

Counsel submitted that no Policy could have prevented Mr Fs actions.

He pointed to credibility issues in the complainant’s evidence. Managers at the Store were unaware of the detail of the allegations until August 26. The Rumours and gossip formed a sub plot in the case.

Mr Lowey emphasised that the Complainant had not proved in evidence that they had constructive knowledge of sexual harassment. The Compliant delayed 3 months before bringing the complaints forward. She did not ask for a deferral of investigation on health grounds.

The Respondent denied that the complainant was at first encouraged to find a new job, saying it was not in Mr As makeup.

Ms Y had the scope to grant a new investigation. counsel submitted that the complainant had denied herself that fresh investigation by withholding the audios.

The Respondent sought to rely on the full defence provided for in Section 14(A)(2)

 The Court went on to consider the application of s. 77(5)(A) 

The 2008 incident involved an assault on the complainant by a named individual. The Facebook incident occurred some four years later. That posting was made by a different person than the assailant in the 2008 incident. There was no evidence proffered of any other incidents of harassment of the complainant in the intervening period. The 2008 incident was also different in its nature and character than the Facebook incident. In these circumstances and having regard to the length of time between both incidents, the court can see no basis upon which it could be held that they were sufficiently connected so as to be characterised as separate manifestations of the same harassment. Consequently, the court is satisfied that they do not constitute a continuum of the harassment for the purpose of s.77(5) of the Act. Accordingly, the court must hold that the 2008 incident was a stand-alone occurrence and that the complaint in relation to that incident was presented outside the statutory time-limit and is statute-barred.

In the instant case, the occurrence dated c 4 May 2019 falls within the cognisable period for the claim. However, I am mindful that the complainant has convincingly joined together associated complaints which are allegations of detriment outside the cognisable period. 

These events are in my opinion linked and form a continuum. I am strengthened in my view on that point by the surprising declaration from the complainant when she told me that her newly declared single status was observed by Mr F on her social media site in December 2018 and from then she referred to changes in their working relationship. 

I find that the events complained of form a continuum under S 77(5) and I find in favour of the Complainant in this Preliminary Argument. I have accepted the chain of associated events as a continuum for the purposes of my Investigation. 

Substantive case. 

This case came before the WRC on 21 October 2019. The Complainant has moved a personal injury case also, which I understand is now before the High Court, since April 2021. 

Burden Of Proof:

The Burden of Proof necessary in this case is set out in Section 85 A of the Act.

It requires that the Complainant must establish to my satisfaction on the balance of probabilities a prima facie case of discrimination, that is she must infer, not conclude on facts from which it can be established that she was sexually harassed and harassed on the grounds of her gender. If she succeeds at this juncture, the burden of proof to rebut that prima facie case rests with the Respondent.

Sexual Harassment:

The Complainant has submitted that she has rejected the findings of both the external investigation and the resultant appeal. She said that she had sought a new investigation and failed in that. She has presented as a frail individual who submitted that she has been maintained on anti-depressant medication, day hospital, counselling, and medical support. I did inquire on a number of occasions if the complainant wished to tender medical evidence, but none was forthcoming. I was encouraged by reports of her supported return to work. 

The Respondent has submitted that they have placed full reliance on the completed investigation of Ms HR2 and the Appeal by Ms Y and that their findings cannot be disturbed due to the refusal of the complainant to engage and the strategy she adopted in relation to the tapes. The External Investigation did not determine that sexual harassment occurred but rather that Mr F had by his own admission behaved inappropriately and was disciplined accordingly. The issue of the 4 audios came as late disclosures for the Respondent, who had begun to doubt their existence. These were in turn entered into a new investigation, which came to abrupt end on the passing of Mr F. 

My Investigation is given Statutory authority by means of Section 77 of the Act.

The Law on Harassment was defined in Nail Zone ltd and A Worker EDA 1023. 

I had the benefit of hearing the complainant’s direct evidence in this case. I also had the benefit of hearing the audios and reading the agreed transcripts I appreciate that I did not hear from Mr F or Ms HR1. The Respondent clarified that Mr F had not been a witness in the earlier case. 

Analysis:

I was struck by the Complainants account of the baseline of the working relationship between her and Mr F.

He had been in the business some 6 years earlier than the complainant as reflected on the record of his receipt of the staff handbook. The incidents in this case were chronicled from December 2018, following the complainant’s declaration of her single status. which she attributed as a trigger for Mr Fs change in attitude to her.

The incidents complained of were not witnessed or recorded. It was the Complainants case that the Respondent was on full notice of the extent of the sexual harassment through Mr B and latterly Mr A, from May 2019.

 On clarification, she told the hearing that she had chatted with Mr B and told him that Mr F had sought to “get with her “and had not sought a course of action from him. she clarified by saying that Mr B had told her to “tell someone “

I accept from the Complainants evidence that she became the target of Mr Fs interest from December 2018. I believe her when she described that he sought her out at work and spoke to her reliant on sexual undertones. I also believe her when she described the lewd acts witnessed by her which shocked and disgusted her. However, I also detected that there was a “buoyancy “and “easy familiarity “in their working relationship at that particular time. The tapes directed me to this fact.

She confirmed that she had exchanged texts with him, all of which had disappeared and were not retrievable. This was confirmed by Mr A and Mr Z in the context of the meeting they had with Mr F on May 16. I have to conclude that there was a certain amount of consent to the changed working relationship from December 2018. This is reflected in the audios, which I appreciate were led by the Complainant and Mr F was unaware he was being recorded surreptiously. 

The Respondent has marked the Complainant as missing from the business through sick leave and annual leave 12 May -June 1. however, audios 1 and 2 are attributed to May 27 and reflect a statement from the complainant that she didn’t want to come to work on that day and a further direction from Mr F that directs her back to the tills which suggests a workplace presence. I am confused by the sick leave record attributed to this time.

Audios 1 and 2 reflect the complainant’s distress at a reported growing wave of rumours about her relationship with Mr F which she has always denied.

Audio 2 features a discussion of the triangular relationship involving Mr Fs family member and complainant colleague and the tape suggests at the very least that the complainant was keen to damage limit any circulating reports within the shop. She made a very clear statement on that tape of her stated intention to report the lewd acts reflected in her evidence, but all parties accept that the first reportage of the allegations of sexual harassment were articulated on the morning of 26 August 2019 to Mr A. and more precisely in the taped encounter on 28 August 2019.

The Complainant has relied consistently on her stated certainty that the sexual harassment was known by Mr A and Mr B as far back as May. I have not found evidence of this. I have had regard for both parties’ placings on the Organisational Chart i.e., that Mr F was a Manager and the Complainant, a subordinate.

In fact, from the evidence of both Mr A and Mr Z, I found very honest disclosures that they both understood, with some embarrassment that Mr F and the Complainant were engaged in a relationship, the extent of. which they felt was none of their business and consequently did not probe.

 Events overtook them when Mr Fs family member attended the shop and disclosed the exchange of texts which were not probed by Mr A but did prompt a tri partite discussion with Mr F when he told them both then he was seeking refuge through the store flat from a marital problem

. It is of note that he availed of the store flat for one night only I accept the evidence of Mr Z in that regard.

The Complainant recounted a change in Mr F following her interaction with him through the taped conversation on May 27. She said he became indifferent and inattentive at work towards her. It was clear to me that this disappointed her.

I have considered the parties evidence very carefully around the delay May 2019 to August 26, 2019, which signalled the reportage of sexual harassment. It is arguable that the complainant may well have reported it to Mr F himself when she articulated those words on the tape on May 27, but a procedural containment followed from both of them.

I had to consider what prompted the disclosure by means of an unplanned meeting on August 26 in a week where Mr Z, Ms H and Mr F was absent from the business? On a careful considering of the complainant’s evidence, I found some guidance in her own reasoning apportioned to the delay. she said that Mr F had changed towards her, and she was sick of the late shifts. A careful perusal of rosters confirmed an abundance of late shifts on her line over July and August. A careful consideration of the evidence reflected that the Complainant had “shrunken “somewhat into the secondary victim” mode at that point. she expressed an anger that attention was directed by the Respondent towards Mr F and his family without commensurate attention to her. I found this anger to be a displaced anger. I have identified that Mr F was the real target for this anger.

I find that I must conclude that the Complainant was significantly aggrieved at where she found herself in August 2019. I find on the balance of probabilities that she was indeed subject of the rumour mill by the work force, and this upset her greatly. I did not hear evidence on the detail of that rumour mill outside an over arching reference to the global presumption of an affair.

I do not accept her evidence that she stayed silent until August because she believed that Mr F had declared that he would end his life if the lewd occurrences were reported or that she didn’t want to break up a marriage. The audios recorded at their height reflect Mr F’s view that his working life might be compromised. I have found that the Complainant was slighted by the end of August 2019. she was in a self-declared wilderness when she approached Mr A on August 26, 2019. 

I did probe whether she identified any supports for herself at the Store through her immediate supervisor or a friend? However, I was struck by her description that no one was available to her and instead, she acted on the advice of an external friend who advised her to tape people without their knowledge. I found it regrettable that the complainant did not test that advice before acting on it.

However, the question remains has the Complainant satisfied the burden of proof required in the case? 

The Code of Practice SI 208 /2012, Harassment Order emphasises that intention of the perpetrator of sexual harassment is irrelevant, the effect of the behaviour on the employee is what is relevant. 

I find that the complainant wrote down her complaints of sexual harassment following a number of invitations to do so by the Respondent. She submitted these on 6 September 2019.

I have taken account of the complainant’s evidence on sexual harassment and find that she has established a prima facie case of sexual harassment as described section 14 A of the Employment Equality Acts.  I find that she was subjected to verbal, written, physical and visual displays of sexual harassment The impact of which has been enduring as reflected by her statements at hearing on how the complainant had absented herself from the workplace and is still visibly struggling to cope on her recent return there.

I would have liked to have heard medical evidence in the case as the Complainant herself referred to a recent diagnosis of depression and anxiety without pinning down a commencement date for same. 

Consideration of the Respondent Defence: 

I must now consider whether the Respondent has rebutted the prima facie case raised? The Respondent has claimed in the strongest possible terms that they are rightfully seeking the defence outlined in Section 14(2) of the Act by their pro-active management of the matter through foundation policies, a universally circulated zero tolerance sexual harassment and a swift elevation of the complaint to external formal investigation and appeal.

In my review of the facts of this case, my attention was drawn to the Labour Courts Deliberations in MBCC Foods ltd v Quilty, EDA 28/2021, In this case, the Court reflected that the Respondent had accepted the occurrence of sexual harassment. The court relied on a montage of jurisprudence in claims for defence in cases of sexual harassment, in setting out what they considered could succeed in securing such a defence.

They heralded the necessary pre -existence of adequate policies which were understood by Managers for implementation. In MBCC Foods, they identified aseismic gap in that regard which ultimately placed the defence out of reach and an escalation of a compensatory award.

I understood the point made that a live policy anchors training and awareness, without a policy, nothing proactive followed and sexual harassment was enabled to exist. 

It is not easy for the Court to measure the level of seriousness of a complaint of sexual harassment. Obviously, the very upper end of seriousness includes situations of sexual assault. However, it is not possible to say with any certainty what might be construed as minor examples as much can depend on the impact of harassment on the individual. Each case has to be examined on its unique facts. What can be said in the instant case is that the Complainant has a right to go to work without being subjected to unwanted pictures of her manager in his underwear or childish and offensive representations of male genitalia. While the nature of such offensive behaviour may not be in the same category as physical assault, it is considerably more than harmless banter and the Court does not concur with the view of the AO that the acts fall into the lowest category of misbehaviour. 

I fully accept that the Respondent had comprehensive policies and procedures in place seeking to prevent sexual harassment and manage complaints arising. I also noted the diligent recording system which reflected the participants interface with training. I also note that the Complainant accepted that she had received a short induction but could not recall training in sexual harassment in the intervening period. she had consulted her sister’s handbook to guide her reportage. I have also considered her signed acceptance of Inter staff behaviour sheet which served as a Mission Statement on unacceptable behaviour at work on 24 September 2012.  This, for me constituted a robust zero tolerance strategy and was distinguished from MBCC foods.

” All forms of sexual harassment as defined in our Policy for same is totally forbidden and unacceptable “

I am also influenced by the complainants’ disclosures on the tapes to Mr F that his actions constituted harassment in May 2019. This demonstrated an insight, for me into the depth of the unwanted behaviour to the point where it was named.

It is important for me to reflect the precision in the prescriptive procedures open to the complainant to highlight harassment and sexual harassment A recipient of unwelcome behaviour such as harassment and sexual harassment was invited to record the instances through time, location, and witnesses. the provision of the contact person was clear, but I accept the Complainants point that Ms H was not named in the Policy. However, I accepted Ms H evidence that she had recognised a past vulnerability in the complainant and had supported her.

Of interest is that temporal limitations were set down with an opportunity to extend that time on exceptional circumstances. It goes to the root of this case, that the Complainant was not met with temporal limitations for her complaints within the work setting. 

I must be satisfied that the policy on sexual harassment had adequate arrangements in place to ensure that the content of, and importance of adherence to that policy was properly understood by the Managers who were responsible for its implementationA Store v A Worker EDA 163

This brings me to the most difficult part of the case to assess.  Mr A encouraged the Complainant to write everything down in the second and third audio on August 26. The Complainant said she was defeated in complying with this as his first response had not been as supportive. This was the untapped meeting.

I have reflected on this, and I have identified a reluctance in the complainant to formalise her complaint. I appreciate that by then she was feeling “left out “and diminished and had predicted a difficulty in being believed by Mr Fs immediate peer grouping she held on tightly to the premise that the respondent was aware of the enormity of the sexual harassment from May 2019. My attention was drawn to Mr A’s tones on the audios as it began to dawn on him the particulars he had to deal with. A light bulb moment evolved, and I could detect a warm and empathetic approach.

 However, the audios demonstrate the pathway that was proposed first by Mr A on the tapes subsequently endorsed by Mr Z, and actioned by the external trio of Ms HR 1, Ms Hr 2, and Ms Y. The Complainant agreed to participate in the formal investigation tabled by the Respondent.

The sole obstacle identified by Mr A, and I believe him, is that the Complainant was not yet prepared to commit the complaints to writing on August 26 -28. I can appreciate that once Mr A got a sense of the enormity of what the business was expected to address, he did experience a certain “jitter” he recovered promptly and put a welcoming and real time structure for reportage before the complainant. She did not avail of this

 Instead, she approached Mr Z who mirrored Mr A’s approach and asked her to commit the complaint to writing. The Complainant went on sick leave immediately after that meeting and did not avail of the invitation to write her complaint until she met Ms HR1 on September 6.

It is of interest and relevance that the complainant committed the complaint to writing on that day. She demonstrated a willingness to participate in the investigation. 

Everything changed after this. It struck me that the complainant was unaware of the ownership of the complaint once she completed it. She submitted the complaint to her employer and while on sick leave awaiting participation in the investigation. It is my view that the complaint became the property of the respondent from that date forward unless she decided to withdraw it.

By September 11, Ms HR1 had recused herself from the investigation at the behest of Mr F. Mr Z sought to explain this to the complainant but I believe the message got lost in the reference to escalating the manner to the Gardai.

I was struck by the concern Mr Z expressed in relation to seeking to preside over a fair process in dealing with something that he didn’t have a lot of experience in. He was holding on tightly to the company policies and I accept that he pointed to a deficit in how the policy would work alongside a potential garda investigation. I accept that he spent time with the Gardai and acted on their advice to seek contact from the complainant. This was not forthcoming. I found him very sincere in that regard. 

The introduction of Ms HR2 was met by opposition from the Complainant and her father who sought to negotiate terms for the complainant’s continued involvement in the investigation. In essence, there was a concerted attempt by the Complainant and her support person to operate a “dual control “to in effect barter in the Investigation, which was unsuccessful. They set terms for an acceptable outcome which veered outside due process. The Respondent did not detour from the planned formal investigation.

 The Complainant boycotted the investigation after that. I could not identify that the investigation was biased at that point. However, I did note that the Complainant held a strong view that she had been treated differently to Mr F in the course of the investigation. I learned in the context of the hearing that the Respondent had accepted his objections to Ms HR1 in her presence as a scribe. 

I was very struck by the complainant’s visible lack of awareness of the chronology of correspondence which governed this period and in particular the letter of October 10, which seemed to me, at least to answer the questions posed by the complainant’s father. I found that she just wasn’t present in her own case at that time.

I asked Mr Z if he had considered approaching the Complainant to encourage her attendance, at investigation? he told me that he saw that as Ms HR2 job. I can understand and appreciate this position.

 I have found that Ms HR2 legacy documentation reflects an ardent effort to encourage the complainant’s participation in investigation by issuing of terms of reference and a dossier of direct communication which incorporated clarifications and stated aims for the investigation. 

I note that a Personal Injuries case was brewing also in that period, and I have identified that the complainant just got lost in the different strategies all running simultaneously. I completely understand that the complainant was frightened and embarrassed during that time, however, the pillars of an investigation were open to her which could have eased that fear .and perhaps brought an earlier closure. During all of this, the Complainant submitted the instant complaint to the WRC.

I found that the Complainant did not understand the targeted objectives at this point as the procedural strands became entwined remotely, but there was no participation in the foundation investigation.

. I note that Mr Z recounted the complainants Fathers insistence that Mr F apologise long before the completion of the investigation and distanced the complainant from the investigation from an early stage. That was regrettable.

I find that the Respondent was bound to investigate the allegations as a staff welfare issue as well as seeking to uphold the rights of the participants. It was open to the complainant to name witnesses who may have assisted in the inquiry.

I have found that the Complainant may not have appreciated that and may well have benefitted from the presence of a professional representative much earlier in the case.

I cannot find the Respondent culpable for the complainant’s lack of participation in an agreed investigation. 

Counsel for the Complainant has submitted that the Complainant was not medically examined prior to the investigation and that this veered outside the terms of reference. I agree that it would have constituted best practice to ensure that an employee on sick leave would be deemed medically fit to proceed. However, the Complainant confirmed that she has been under constant medical advice from August 30, 2019. This team did not steer her participation away from any investigation or appeal. No medical evidence was adduced in the case. 

I was struck by Ms Y objective commentary on seeking to conclude her appeal. She said that the meeting was monopolised by the Complainants father, and the complainant had not engaged outside of allegations This was disputed by the Complainant who submitted that the outcome sought was a fresh investigation.

I found that Ms Y adopted a very measured approach to the appeal.

I note her recommendation to return the complainant to work which went unheeded.

I would like to take this opportunity to say that I understand that the Complainant was terribly hurt by her experiences at work and perhaps her father understandably sought to protect her from further hurt.

 But it is impossible to make an omelette without breaking eggs and there was an onus on the complainant to participate in her own case with support. She just didn’t seem to understand that she would be expected to prove her case and her irritation towards Ms HR1, and Ms Y stood in sharp contrast to her initial approach to Mr A and Mr Z.

The Respondent, through the appointed investigators was prepared to hear both sides. I have found that the objections raised by the Complainant were remote from the process and were a defensive and perhaps a self-protective mechanism. Ultimately the Complainant has to be recognised as a reluctant complainant within the external investigatory framework. 

I have reserved my position until now to comment on the of the delay regarding the possession of the tapes and their eventual submission to the WRC process. I had no idea what event triggered their release first day in March 2021 as I admitted the tapes at the top of the present case and worked with them from there.

I sought and secured some real time commentary on how the audios may have emerged. The Respondent said they were sent to them “out of the blue “The Complainant was unconvincing on their delay in her evidence. The Respondent presented as simply incredulous on the delay in release and was strongly of the view that an earlier release might have generated a different outcome. 

For my part, I take on board Mr Zs commentary on the first day of hearing, when he remarked that a covert recording may well place the power in the Recorder. I agree with him as time and time again during the audios, the complainant steered the conversation away to match her goal of securing evidence.

Once again, I comment that I have found that the complainant seems to have got lost in her own case. I find that she was obliged to seek to enter those tapes in the external investigation or even in the appeal framework in continuation of her conversation with Mr Z,

Parties in this case must be aware that they are obliged to present evidence with all cards “face up “and from the outset.

The retention of the tapes beyond those fora was in my opinion a misplaced strategy, unjust and illogical. I am sure those tapes could have had a definitive and restorative impact much much earlier. rather than planning to save them for an unnamed Court outside my jurisdiction. 

I am mindful of the Respondent chronology where the tapes were released in March 2021. This prompted a further suspension of Mr F, who sadly died some weeks later in tragic circumstances. He did not provide Mr Z with any last statement on the matters in this case. 

In again suspending Mr F and calling a fresh investigation, I find that the Respondent acted responsibly. By then, the Complainant had not worked with him for over 18 months, and I found that the Respondent followed the Company Policy. I would make a remark that some inequity has accompanied the complainants paid sick leave of two weeks in September 2019, whereas both periods of suspension were fully paid to Mr F. This may be something the parties may wish to engage on in time.

Another compelling aspect of this case has been what I will refer to as “By standers “who honestly interpreted the workplace interactions of the Complainant and Mr F as a fledgling affair. they were Mr B, who I did not meet, Mr A and Mr Z. The Complainant equally referred to the rest of the workforce as bystanders and rumour mill. She was very troubled by the thoughts of this grouping.

 I would have liked to see a “By Stander Intervention Policy “in this situation which may have provided an opportunity for the by standers to act to distinguish their perceptions of an affair as opposed to sexual harassment. I appreciate that it is a new preventative tool in the world of equality and diversity, but nonetheless a useful deciphering and a discreet tool. I am guided by that in my clarifications from the complainant who told me that she had chatted with Mr B and had not expressly sought his intervention.

It was also apparent that Mr Fs family member was an employee seeking support. 

. In order to avail of the defence, the employer must demonstrate that preventative measures were taken before the occurrence of the offending conduct, occurred. The taking of post hoc action in response to a complaint does not make out the defence. 

I have found that the Respondent can rely on the defence contained in Section 14(A)(2) of the Act when they took steps that were reasonably practicable to prevent Mr F from sexually harassing the complainant by the overarching policy and correct application of this policy which sadly did not enjoy the complainant confidence at the formal investigation she had agreed to. The Respondent has welcomed the Complainant back to work . 

Section 14A (2) provides an employer, who would otherwise be liable for harassment by application of subs. (1) of that section, with a full defence in defined circumstances. 

I find that those defined circumstances are at play here. The Respondent followed the company procedures and sought to investigate a claim of sexual harassment and harassment advanced by the Complainant. I have found that the complainant did not maintain a   presence in that complaint and this self-imposed exclusion was to her detriment and thwarted the effectiveness of these Policies. 

On balance, I fully accept that she was hurting during this period and that may be the real reason for her reluctance and misplaced anger towards the respondent.

There is no one in this case who can walk in the complainants’ shoes except her. She has clearly struggled in that journey but  has demonstrated  a courage and dignity in her return to a supported workplace.

I am hopeful that the parties in this case can build on the complainants return to work .and that the Complainant can rehabilitate back to work to her original hours of work. 

In conclusion, I fully accept that the Complainant experienced Sexual Harassment in the course of her work. However, I cannot fix liability for this against the Respondent on this occasion.

The Respondent can rely on their submitted defence.

I have not found that the complainant was harassed outside of the presiding sexual harassment.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the complainant experienced sexual harassment in the course of her work, However, the Respondent can rely on the defence permitted in Section 14(A) (2) of the Act as they took reasonable steps to prevent the harassment, to prevent the victim from being treated differently in the workplace or in the course of her employment and to reverse the effects of the harassment .

I have not found that the complainant was harassed outside of the presiding sexual harassment.

The Claims of discrimination on gender grounds are not well founded.

Discrimination on Gender, Harassment, Sexual Harassment