ADJ-00026785

Representatives

Michael Kinsley, BL

Fiona Egan, Peninsula Group Limited

Complainant

Respondent

Anonymised Parties

A Bar Tender

A Hotel

Act

Complaint Reference No.

Date of Receipt

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

CA-00034113-001

31/01/2020

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

CA-00034113-002

31/01/2020

The complainant commenced working in the respondent’s hotel on April 1st 2016, when she was still in secondary school.  She was a member of the waiting staff and she worked at various time in the bar and grill, the restaurant and the function room.  By the summer of 2018, she had finished school and she started working full-time in the hotel.  When her employment ended, she was earning €9.95 per hour and, at the opening of the hearing, she said that she worked up to 50 hours a week.

In September 2018, the complainant submitted a letter to the general manager, setting out her concerns about altercations between her and the deputy manager.  Almost 11 months later, on August 6th 2019, she resigned, giving two weeks’ notice of her intention to leave.  She claims that she resigned because of the conduct of the deputy general manager.  For this reason, she claims that the termination of her employment was a constructive dismissal.

In breach of section 14A of the Employment Equality Act 1998, the complainant claims that she was harassed on the gender ground and because she is a member of the Traveller community.  In line with the definition of victimisation at section 74(2) of that Act, she alleges that she was victimised after she made a complaint of sexual harassment.

These complaints were submitted to the WRC on January 31st 2020, more than five months after the complainant resigned.  The time limit for submission of a complaint under the Unfair Dismissals Act is set out in section 41(6) of the Workplace Relations Act 2015.  This provides that a complaint must be submitted no later than six months after the date of the contravention to which it relates.  Section 41(8) provides that, for reasonable cause, an extension of the time limit of up to 12 months may be permitted.  The same time limit and the provision for an extension to 12 months applies to complaints under the Employment Equality Act.

Based on the time limits, the cognizable period for consideration of these complaints is from August 1st 2019 until January 31st 2020.  On the form she submitted to the WRC, the complainant’s solicitor requested an extension of the time limit to 12 months, because the manager who the complainant alleges caused her to resign was in a position of authority and because she needed the income from her job.

While the complainant left her job less than six months before she submitted these complaints, the conduct which she alleges caused her resignation goes back further than six months.  She claims that most of the incidents occurred during “the peak wedding season” of May, June and July 2019.  She has not provided dates for the incidents which she claims are grounds for her complaints.

The complainant resigned on August 6th 2019 and, in her letter of resignation, she was appreciative of the opportunity of having learned from working in the hospitality industry and she made no mention of the incidents that she claims led her to resign.  She gave two weeks’ notice and she said that she would finish up on August 20th.

While she was working out her notice, on August 9th, there was a wedding in the hotel and the complainant was working at the bar where two of the wedding photographers were eating their dinner.  The deputy general manager was also working at the wedding and, as the complainant was chatting to the photographers, he intervened in the conversation and referred to her as “only an itinerant.”  On August 13th, she submitted a complaint about this to the general manager.  She also alleged that, previously, on dates that she did not specify, the deputy manager made sexual comments that made her feel humiliated and sexualised.  The complainant did not resign from her job because of the “itinerant” comment, because she had already submitted her resignation on August 6th.

I have considered the fact that the complainant did not specify the dates on which the incidents occurred that led to her resignation.  I am satisfied that most of them occurred more than six months before she submitted her complaints to the WRC.  I have also taken account of the tone and content of her letter of resignation and the fact that she worked for two weeks after she resigned.  I have also considered the fact that she submitted these complaints to the WRC on January 31st 2020, five months after she resigned, although, in an email to the general manager on August 15th 2019, she said that she was taking legal advice.  Lastly, I have considered the complainant’s explanation for the delay submitting her complaints.

I have concluded that the complainant has provided no reasonable cause to persuade me to grant an extension of the time limit to consider her complaint under the Unfair Dismissals Act.  In relation to her complaint under the Employment Equality Act, the incident of August 9th 2019 is within the cognisable time limit and I will proceed to investigate that complaint.

In his written submission in advance of the hearing, Mr Kinsley said that, for most of the time that she was employed in the hotel, the complainant reported to the deputy general manager.  For convenience, I will refer to this manager as “DP.”  Almost a year before she resigned, in September 2018, she wrote to the general manager, complaining that DP made comments about her appearance, about her hair colour and how her uniform made her look.  She said that he made physical threats towards her and that he shouted at her in front of customers and staff.  She claimed that he made comments about her to other employees, advising them not to be lazy like her.

As a result of her complaint, DP accepted that he spoke about the complainant inappropriately and he apologised and assumed that everything was okay.  From the complainant’s perspective, everything was not okay and DP’s unacceptable behaviour continued.  By August 2019, the complainant had had enough.  Her health was suffering and she went to her doctor because she was suffering from stress.  Mr Kinsley said that the complainant has a history of suffering from anxiety which was aggravated by the conduct of DP.

The general manager took no action on foot of the complainant’s letter and he didn’t carry out an investigation.  The complainant had no choice but to continue to work with DP.  She was anxious and stressed about how she was treated.  DP’s behaviour towards the complainant worsened and he made sexual remarks which made her feel uneasy and unsafe. 

Having handed in her notice on August 6th, on August 13th, while she was working out her notice, the complainant wrote to her line manager, the assistant food and beverage manager.  In her email, she told him about DP’s tendency to talk to her about sex and about his description of her, on August 9th, as an itinerant.  Her letter was passed to the general manager. 

The Burden of Proof

Mr Kinsley submitted that the complainant has established a sufficient factual basis for me to presume that she was discriminated against in her employment and that it is for the respondent to show that she was not discriminated against.  In support of this argument, he referred to several legal precedents:

Cork City Council v McCarty[2]

In this decision of the Labour Court, it was held that it was sufficient that the presumption that discrimination has occurred is within the range of inferences which can reasonably be drawn from the facts.

ICTS (UK) Limited v Magdi Ahmed[3]

Considering the difficulty that often arises with regard to proving whether discriminatory remarks were actually uttered, the Labour Court stated that the evidential burden on a claimant under the 1998 Act may be discharged by providing unsupported oral evidence of discriminatory acts.  Mr Kinsley submitted that, in light of the comments of the Labour Court in this decision, where a complainant provides other credible evidence, her uncorroborated evidence of discriminatory acts may be enough to discharge the evidential burden imposed by section 85A of the 1998 Act.  He argued that there is sufficient extraneous evidence to support the complainant’s case in these proceedings.

Gleeson v Rotunda[4]

In this case, the Labour Court concluded that the failure of the respondents to keep records of an interview attended by the complainant and the opaque nature of the decision-making meant that the burden placed on the respondent by section 85A had not been discharged.  Finding in favour of the complainant, the Labour Court made it clear that a respondent is tasked with a significant burden to demonstrate that it has not discriminated and that this burden can only be discharged if the relevant evidence is produced.

Mr Kinsley submitted that the credible evidence provide by the complainant is sufficient to discharge the burden imposed on her by section 85A and the burden of proving that discrimination did not take place shifts to the respondent.  He argued that the respondent cannot merely rely on an assertion that it did not discriminate, but must be able to provide independent corroboration of the processes used to prevent and investigate such conduct.

Victimisation

Mr Kinsley said that the treatment of the complainant by the respondent since she raised her complaint of sexual harassment by DP amounts to victimisation.

Factual Background

Ms Egan provided a written submission on behalf of the respondent.  Having commenced employment on April 1st 2016, Ms Egan said that the complainant was issued with a contract of employment and a copy of the employee handbook, which she acknowledged and signed on April 9th 2016.  The complainant was given opportunities to upskill and gain new experience.  She worked in the bar and grill in the hotel, and in the restaurant and the function bars.

On August 6th 2019, the complainant resigned at the end of a busy night by handing her written notice to a manager.  In her letter, she stated as follows:

“Dear [Hotel] Management,

I would like to firstly thank you for the last four years; I have been able to grow and learn so much in the hospitality industry.  It is with regret that I would like to make this my official resignation.  My final day of work will be the 20/8/10.”  

The following day, the manager who received the complainant’s letter of resignation gave it to the food and beverage manager.  This manager sat down with the complainant and asked her to re-consider.  The food and beverage manager wrote in a letter to the general manager that the complainant agreed to stay on if she got a pay increase to €11.00 per hour.  She said that she had an offer of a job in another hotel at that rate of pay.

On August 12th, the food and beverage manager sent an email to the complainant, telling her that her rate of pay would be reviewed in September, which was only a few weeks away.  She heard nothing further from the complainant.

The following day, August 13th, the complainant submitted a written complaint to the assistant food and beverage manager regarding certain alleged behaviour and comments of DP on August 9th and on other dates which were not specified.  A copy of this email was included in the respondent’s book of documents for the hearing.  On August 14th, the general manager sent the complainant an email, asking her to attend a meeting on August 16th to discuss her complaints.  The complainant did not attend, and she informed the general manager that the matter was in the hands of her legal advisors.  She finished up on August 20th.

Legal Submission

It is the respondent’s case that the complainant has not set out the primary facts which establish that discrimination has occurred.  In Arturs Valpeters v Melbury Developments[5], the Labour Court elaborated on the interpretation of section 85A of the Employment Equality Act 1998 (“the EE Act”) and determined that the burden of establishing the primary facts lies “fairly and squarely” on a complainant, before the onus shifts to the respondent to prove that discrimination did not occur.

The complainant alleged that, on the night of August 9th 2019, while she was working at the bar during a wedding, that, in front of the wedding photographers, DP remarked, “sure you’re only an itinerant.”  Ms Egan said that the respondent takes this allegation seriously and wishes to respond.  Their response is set out in the evidence given by DP at the hearing which is summarised in the next section under the heading, “Summary of the Evidence.”  It is the respondent’s case that the term “itinerant” refers to the Oxford Dictionary literal meaning of the terms which is defined as, “travelling from place to place, especially to find work.”  It is submitted that the adjective holds no inference as to the heritage of one’s family as alleged by the complainant.  Ms Egan also referred to a Revenue document regarding expenses.  On the document, the term “itinerant” is used in the context of living away for work.

The complainant referred to an incident around May 2019 when DP showed her how to turn on the disco lights.  It is the respondent’s position that DP never showed the complainant how to turn on the disco lights and that the only people who turned on these lights were the former team leader and DP himself.  Ms Egan said that, as an exception to this, the current team leader turned on the lights on two occasions.

DP recalls that, on one occasion at work, he asked the complainant if everything was under control regarding the preparation of drinks and that the complainant replied, “I’m always on top of it,” to which DP replied, “that’s great.”

The complainant referred in her submission to a previous occasion when she raised a grievance with the general manager about DP.  Ms Egan said that this matter was investigated and dealt with.

Ms Egan said that it is telling that the complainant never brought her later concerns about DP to the attention of management, and the fact that she made no mention of them in her letter of resignation.  When she was given an opportunity to discuss her complaints with the general manager, she refused to do so.  It is the respondent’s position that DP never used inappropriate or sexually explicit language with any member of staff and that these claims are without foundation or are vexatious.

Evidence of the Complainant

The complainant said that she was aged 17 when she started working in the hotel in 2016.  She was not allowed to serve alcohol at the bar and she worked as a server.  When she finished in secondary school, she went to work full-time in the hotel and she became a bar tender. 

DP joined the hotel after her, working on functions.  (In his evidence, DP said that he started working in the hotel in July 2017 and in November 2018, He was promoted to the job of deputy manager).  The complainant said that she felt that he took a dislike to her.  She said that he made an example of her and that he used her name to make a point. 

In 2018, DP gave out to the complainant in front of some of the hotel’s guests.  One of the guests told her that his behaviour was unacceptable.  A week or two later, the complainant said that she approached the general manager, “GM,” and she told him that DP was shouting at her in front of guests.  She said that she felt that he was singling her out as an example of a bad worker.  The complainant said that, in response, GM told her that she needed to be strong and not tearful.  She said that he told her to follow the procedures in the employee handbook for investigating a grievance.  The complainant said that she told GM that she hadn’t got a handbook and he replied that he would get one for her.  She said that he didn’t give her a copy of the handbook.

The complainant said that GM investigated her complaint and got a statement from DP.  She said that she saw this statement last year when it was sent to her by her solicitor.  Others also gave statements to GM and she also saw these only when her solicitor gave them to her. 

The complainant said that, to resolve matters, DP asked to meet her.  He said, “sometimes it looks like people aren’t working when they are.”  The complainant said that she wasn’t happy with this outcome and that she felt that she wasn’t taken seriously, but that she wanted to move on and put it behind her.  She said that, for a while afterwards, things became more civil, but then they got bad again.  She said that DP would ask her if he looked powerful, and she would reply, “yes, you look powerful.”  She said that she was working hard, and not taking much time off and she felt under stress.

One day at work, DP asked the complainant if she was stressed.  He suggested that she needed “a good seeing to,” which, the complainant said, meant that she needed to have sex.

On another occasion, DP showed the complainant how to turn off the disco lights in a small “cubby” under the stairs.  When she was in this confined space with DP, the complainant said that he told her not to get any ideas.  She also referred to the comment about being “on top,” when DP is alleged to have said, “I don’t need to know how you do it.”  The complainant said that this made her feel embarrassed and insecure and that she felt that she was going “in on herself.” 

She described the incident during the meal at a wedding in the hotel when the photographers were eating their meal at the bar.  She was chatting to the photographers and one of them asked where she was from.  She said that when she was answering, DP said, “you’re only an itinerant.”  She said that she replied, “I could be an itinerant, so what?”  She said that she told DP that she could report him to HR for the comment.  She said that he replied, “sweetie, I am HR.”       

By August 2019, the complainant said that she was losing sleep and not eating and that she was upset and nervous going to work.  She said that she couldn’t take it anymore and on August 6th, she resigned.  Mr Kinsley asked the complainant why she didn’t refer to how she was being treated by DP in her letter of resignation.  The complainant said that she felt there was no point and that she would have got “the same run around.”  On August 13th, the complainant said that she spoke to the assistant food and beverage manager.  She said that she told him that she needed to get out of the hotel.  She sent an email to the assistant food and beverage manager and he sent it to the general manager.  GM asked to meet the complainant on Friday, August 16th, but she said that she didn’t go to the meeting, because the situation was similar to what happened in September 2018.  She said that she didn’t want to feel like that again and that she “just wanted to get out of there.”  

Mr Kinsley referred to DP’s response regarding the “itinerant” remark and its dictionary definition of a person who travels from place to place.  The complainant replied that this doesn’t make sense.  She said that DP was pointing out that she was a member of the Traveller community.

Mr Kinsley referred to a note in the respondent’s submission written by the food and beverage manager, who kept a record of a conversation she had with the complainant the day after she handed in her resignation.  There is no mention in the note of any discussion between the complainant and the food and beverage manager regarding DP, or his treatment of the complainant.  In her note, the food and beverage manager referred to the complainant’s statement that she had a job in Dublin and that she had been offered €11 per hour.  She noted that the complainant suggested that she would stay at the hotel if she was offered the same money.  In response, the complainant said that this conversation took place in the hallway near the front desk.  She said that she never insisted on more money, and that she just didn’t want to stay.  She said that she didn’t tell the food and beverage manager what was bothering her.

On the evening that she resigned, the complainant said that it was a very busy night in the bar where she was working and that a lot of things went wrong.  DP was called in to help and she said that she told the assistant food and beverage manager that DP was blaming her for the things that went wrong.  She said that she needed to take a few weeks off.  She had begun to doubt herself and she was asking herself, “am I a bad worker?”

Cross-examining of the Complainant

Ms Egan referred to the employee handbook which was given to the complainant when she started working in the hotel in April 2016.  The copy on file is signed by the complainant on April 9th 2016.  The complainant said that she couldn’t find her employee handbook when the general manager advised her to consult it in September 2019.  He said he would get one for her, but he didn’t. 

In response to Ms Egan’s questions about when the complainant felt that DP had taken a dislike to her, the complainant said it was a few weeks before September 2018.  When she complained to GM that DP had yelled at her in front of guests and that he was talking about her to other employees, GM responded by telling her to stop behaving like a child.  Ms Egan said that other employees said that they didn’t hear DP saying things about her and the complainant replied that she got the dates wrong.  She said that two employees told her that DP was talking about her.  She said that DP met her and “I guess apologised for talking about me and suggesting that I wasn’t doing my work.”

Ms Egan asked the complainant why she didn’t bring her concerns about sexual comments to GM’s attention.  The complainant said that “you feel you are over-reacting.  You are made to feel that you can’t say things.  You doubt yourself.”  She said that others might think that it’s just banter.  She said that no one said that, but it’s just how she felt.

Ms Egan reminded the complainant that she made very serious allegations about DP.  She also referred to the grievance that she raised in 2018 that resulted in an apology.  Ms Egan said that the complainant had an obligation to tell her employer what was going on.  The complainant replied that, when she tried to raise a grievance, she got no support.  Ms Egan pressed the complainant about why, based on her previous experience, she didn’t submit a complaint to GM again.  The complainant replied that, the last time, she was told to read the employee handbook.  She said that the environment was very hostile.

In the complainant’s resignation letter, Ms Egan observed that there is no mention of conduct that compelled her to leave.  The complainant said that, maybe out of embarrassment, she didn’t raise her concerns.  She said that, in her conversation with the food and beverage manager, she wasn’t looking for a pay rise.  She said that her parents wanted her to stay working locally, but she just wanted to leave.  She said that she was embarrassed about what had happened with DP and she contacted her solicitor, Ms Arthur Dunne.   In response to Ms Egan, she said that she wouldn’t have stayed if she had been offered more money.

Referring to the “itinerant” comment, the complainant said that it came from nowhere.  It occurred while she was talking to two photographers at the bar during a wedding.  The tone was, “don’t mind you, you’re only an itinerant.”  The complainant said that, after the “itinerant” comment, she spoke to the assistant food and beverage manager, and then she spoke to her solicitor.

In October 2019, she got another job in a café and she is now in college and working part-time in a hotel in Dublin.

Evidence of the General Manager

GM referred to the grievance about DP that the complainant gave him in September 2018.  He had no recollection of the complainant saying that she had misplaced the handbook she received in April 2016 and he had no recollection of telling her that she was behaving like a child.  He said that he got a hand-written letter from the complainant in which she said that DP had threatened to beat her with a hurl if she didn’t wear her name badge.  She said that he also complained about the colour of her hair.  She said that DP told other employees that the complainant wasn’t doing her work.  GM said that he met three employees who worked with the complainant and he made very brief notes of his conversations with them.  One named employee was off duty on the date that DP is alleged to have made the comment about the hurl.  This employee said that she heard DP telling the complainant that the customers don’t know her name and that she is to wear her name badge.

Another employee recalled that, during a staff briefing on September 2nd 2018, DP told a supervisor to “make sure [the complainant] worked tonight.”  A third employee recalled the same instruction to “make sure [the complainant] does some work today because she did nothing the day before.”

GM said that he spoke with DP about the complainant’s grievance regarding his comments.  He accepted that he had commented in front of others about her not doing her work.  GM said that he was informed that DP apologised and that his apology was accepted.

GM said that he wasn’t aware that the complainant suffered from anxiety.  He said that no other employee made a complaint about DP.

GM said that, in response to the complainant’s grievance in September 2018, he did not tell her to stop behaving like a child.  He said that he doesn’t want anyone to be working under duress.  As a hotel manager, GM said that he does not condone sexual harassment and that procedures are in place to deal with instances of harassment.  He said that no one should be afraid to bring forward a complaint.

Cross-examining of the General Manager

In response to Mr Kinsley’s questions regarding how he treated the complainant’s grievance in September 2018, GM said that he understood the complaint to be informal and he dealt with it informally.  He said that it is not his recollection that it was a serious complaint. 

Mr Kinsley reminded GM that DP is alleged to have commented on the colour of the complainant’s hair, and he remarked that her uniform made her look like a butcher.  GM replied that his recollection was that the comment about the complainant’s hair was about it not being tied back and the “butcher” comment was because her apron was tied at the front.  Mr Kinsley asked GM if he thought that the allegation that DP threatened to beat the complainant with a hurl wasn’t serious.  GM said that it was clear to him that the complainant wanted the matter dealt with informally. 

Mr Kinsley asked why GM spoke to three people, when this level of investigation is not envisaged by the informal policy.  GM replied that it was clear that the complainant had raised serious matters.  He said that DP offered an apology, which was accepted and there were no more issues until a year later.  He said that he had no concerns about asking DP to meet the complainant at the end of the investigation.  As the apology was offered and accepted, he said that it was time to move on.  GM agreed that DP accepted that he had spoken about the complainant’s work to other employees.  In his letter of explanation, DP said that he wasn’t at work on the evening that the complainant alleged he made the comment about beating her with a hurl.

Referring to the complainant’s letter of August 13th 2019, GM said that there were no dates or times and that the complaints were very general.  He said that he asked the complainant to meet him to discuss her complaints.  He had not, at this stage, decided if a formal or informal investigation was required.  Mr Kinsley asked if the complainant’s allegations about DP’s sexual comments were not serious.  GM replied that he hadn’t decided on an informal procedure and that he sent an email to the complainant to ask her to meet him to establish what happened.  He said that DP denied any inappropriateness.  Mr Kinsley said that there is no record of a written response from DP regarding the complainant’s email of August 13th 2019.  GM said that he asked DP for a written response in February 2020.  (This complaint was submitted to the WRC on January 31st.)  GM said that “we got the narrative around itinerant” in February 2020.  He said that he didn’t interview anyone else about the allegations of August 13th 2019.

GM said that the food and beverage manager came to him on August 18th with a note of her meeting with the complainant on August 7th.  He said that he may have asked her to compile this note, but that he couldn’t remember.  He said that he didn’t ask the food and beverage manager to address with the complainant the issues she raised in her email of August 13th because he had already asked the complainant to meet him.  He said that he recalls that the food and beverage manager came to speak to him about pay.

Mr Kinsley asked GM if it occurred to him that he should ask the complainant if her relationship with DP had any influence on her decision to resign.  GM referred to the fact that the complainant seems to have had a busy night on August 6th.  He said that “she declined to meet me.”  Explaining why he didn’t have any contact with the complainant before she finished up on August 20th, GM said that she said that she wasn’t comfortable at the prospect of coming to a meeting and that she was seeking legal advice. 

Mr Kinsley suggested to GM that he didn’t conduct an investigation because he didn’t want to know, but GM rejected that suggestion.

Evidence of the Deputy General Manager

DP said that he started working in the hotel in July 2017 and, in November 2018, he was promoted to the role of deputy general manager, with responsibility for operations and HR.  He also has responsibility for conferences and events. 

In 2018, as the duty manager in the hotel, DP said that he had cause to speak with the complainant about her personal presentation and her uniform.  He referred to her complaint that he threatened to beat her with a hurl, and that he complained about the colour of her hair and that he yelled at her in front of customers.  He said that the complainant arrived to work with pink hair which was not tied back.  He said that it was not professional.  The reference to the hurl was alleged to have been in response to his instruction to the complainant to wear her name badge.  He said that he often has to speak to people about their name badges.  He said that he never threatened to beat the complainant with a hurl.

On August 29th 2018, the complainant alleged that DP shouted at her across a room.  The following week, DP said that the complainant was eating food at the “pass” where food is passed from the kitchen to the restaurant.  He did a staff briefing at 5.15pm and he said that he expressed a view that team members need to be on the floor.  He said that he asked the complainant to go out to the restaurant and when he returned, she was standing at the bar.  He said that he didn’t yell at her.

DP referred to a wedding briefing that he had with staff about 30 to 45 minutes before the bell was rung for the meal.  He said that he told the supervisor to make sure that the complainant worked that evening.

Following the investigation into her complaint in September 2018, DP said that he apologised to the complainant and said that he had been unprofessional.  He said that his apology was accepted.

DP recalled the conversation at the bar during the wedding of August 9th 2019.  He said that the videographer who was eating at the bar with the photographer asked the complainant where she was from and, following her answer, he remarked, “you make it sound like it’s itinerant.”  He said that the complainant replied, “sure I am.”  Ms Egan remarked that sometimes, the work itinerant could be taken to be disparaging.  DP said that it depends on the way it is used. 

DP described the cubby where the switches for the disco lights are located.  He said that there’s only enough room for one person in the space and that he never showed the complainant how to turn on the lights.  He also recalled the comment when he asked the complainant if everything was under control regarding preparing a round of drinks for a wedding toast.  He said that the complainant replied, I’m always on top of it” and that he replied, “that’s great.”

Ms Egan asked DP about the complainant’s statement that he asked her if he looked powerful.  He said that if someone asks him how he is, he replies, “I’m powerful altogether.”

Cross-examining of the Deputy General Manager

Mr Kinsley suggested to DP that the way in which the complainant’s grievance of September 2018 was resolved was that he had a meeting with the complainant and he then informed the general manager that he had apologised. 

When Mr Kinsley asked DP if he would accept that the complainant had no confidence in the respondent’s ability to resolve her grievances, DP replied that he couldn’t say.  He accepted that the allegations raised by the complainant in 2018 were serious.  He said that the complainant didn’t request a formal investigation.  He said that he apologised to the complainant and that there were no issues after that.

Mr Kinsley pressed the witness about his opinion on whether a formal investigation was necessary.  He said that he replied to the grievances, although not in writing.  He said that the complainant didn’t give dates, times or witnesses to the incidents she complained about.  His opinion is that an investigation should be carried out with all the parties and that dates, times and witnesses would be needed.

Mr Kinsley said that no one in management spoke to the complainant between August 13th and August 20th to ascertain if the allegations she had made against DP were the reason she was leaving her job.  DP said that the senior managers discussed it in January 2020.  He said that he can’t remember when he saw the complainant’s letter of August 13th.

Mr Kinsley put it to DP that the term “itinerant” is a derogatory term for a member of the Traveller community.  DP said that he didn’t agree.  He rejected that the complainant was treated in the way she alleged.  He said that he rated her as “one of the best.”

Grievance in September 2018

The complainant’s grievance of 2018 provides a backdrop to the events of August 2019 and I think it is important to consider how that grievance was handled.

Around the end of August 2018, guests dining in the hotel restaurant witnessed DP “giving out” to the complainant.  Her evidence is that one of the guests approached her and was upset at the way DP spoke to her.  In September 2018, the complainant put her concerns in writing:

“Dear [GM]

As I have previously tried to inform you about, myself and [DP] have altercations.  There have been several incidents.  I personally have no idea as to why this started.  I know I’m a good worker.  I have had many named, good reviews online and in person.  [DP] over the weeks leading up to the more serious and concentrated events made comments about my hair colour & my uniform making me look like a butcher.  On the 26/8 he threatened to beat me with a hurl if he seen me (sic) without a name badge again.  With [Employee X] present.  On the 29/8 [DP] yelled at me in front of a restaurant full of customers, for, in his opinion, being lazy.  A table complained to me about his behaviour displayed (sic) with the woman so concerned she began to cry.  On the 2/9, while I was not present, [DP] made comments about me being lazy in another department briefing.  Both [Employees Y and Z] informed me of this.  The whole ordeal has left me severely anxious and unable to sleep, taking a major toll on both my physical and mental health.”

The respondent’s side submitted an email from DP which he sent to the general manager at 21.03 on September 19th 2018.  The subject line of the email states, “as requested,” suggesting that GM gave DP a copy of the complainant’s letter and asked him for a response.  DP’s response is detailed and addresses each of the allegations in the complainant’s letter.

He said that, on an unknown date, he commented on the complainant’s pink hair, saying it was unprofessional, but that his problem was that it wasn’t tied back.

He refers to the “hurl” comment being related to the complainant not wearing her name badge.  He said that he often has to speak with the complainant and others about their name badges but he does not threaten to beat them with a hurl.  He said that, Employee X, who the complainant alleges heard the comment, was off work on August 26th. 

Regarding the incident observed by the guests in the restaurant, DP said that this did not occur on August 29th, as alleged by the complainant, because he was off duty.  He suggested that the complainant may have been referring to an incident about a week later, but he said that he did not yell at her.

In response to the complainant’s allegation that, on September 2nd 2018, he referred to her as lazy in front of other employees, DP said that he was not on duty on that day.

Documents submitted by the respondent include two other notes which pre-date this email.  One is written by GM headed “Sept 2018” and states that the complainant alleged that DP was talking about her in a department briefing, telling employees that they needed to work hard, not like her, and that he threatened to beat her with a hurl for not smiling.

The general manager then goes on to record how he followed up with DP on September 8th.  He said that DP refuted the “hurl” allegation and that he had mentioned to the complainant the need to smile while on duty.  Under a separate heading, “Follow up,” GM noted that,

“September 9th, [DP] reported back that he had spoken to [the complainant], offered his apologies and that they had agreed to move forward without issues.”

This note does not tally with DP’s email of September 19th which contains a robust denial of all the allegations in the complainant’s letter, and no mention of an apology.  If the general manager followed up with DP on September 8th and, if, on September 9th, he was able to record DP’s response, why did DP respond by email on September 19th?  It seems to me that GM’s note, focusing on just two of the four issues raised by the complainant, is written with the intention of minimising her complaints and of emphasising the apology and the decision to move on.

The second note included in the respondent’s papers is a short letter from DP to the general manager, headed, “Re [the complainant], September 9th 2019.”  I find it unusual that DP did not simply send an email to the general manager and that he went to the trouble of writing a letter which is not retrievable on email and which could have provided a record of the date on which it was sent.  I also find it strange that DP wrote that, on September 8th, he apologised unreservedly to the complainant, for speaking about her work in front of others, whereas, in his email of September 19th, he said that he was off duty on the day that the complainant alleged that he commented to others that she was lazy.

The respondent’s book of documents includes notes of interviews with employees “X,” “Y” and “Z” held on September 16th, the purpose of which was to ascertain if these employees witnessed DP remarking that the complainant was lazy.  The notes of these meetings do not reconcile with GM’s note of September 9th in which he claims that DP met the complainant and that he apologised for speaking about her in front of other employees and that “they had agreed to move forward without issue.”  Why would GM conduct interviews on September 16th about something that DP apologised for on September 8th?  These interviews suggest some element of formality in response to the complainant’s letter, despite the general manager’s evidence that he dealt with her grievance informally.  If the general manager had meetings with three of the complainant’s colleagues, no explanation was given about why he did not inform her about this, particularly when the written record of the meetings contradicts her version of what DP is alleged to have said about her.      

In summary, DP’s response in his email of September 19th 2018 was evidently written before he apologised to the complainant.  It is logical therefore, that the apology was not given on September 8th.  I have concerns about the accuracy of the contents and the date of the note written by GM regarding events which he claims occurred on September 8th and 9th, and I am satisfied that the letter from DP to GM dated September 9th is not a contemporaneous record of the events to which it refers.  The evidence of the respondent’s witnesses concerning the 2018 grievance is significantly undermined by this finding.

Events of August 2019

The complainant submitted her resignation on August 6th 2019 and, three days later, while she was working at the bar during a wedding, in the presence of two photographers, DP referred to her as an itinerant.  He said that he understands that term to mean “moving from place to place, especially to find work.”

On August 13th, the complainant sent an email to the assistant food and beverage manager which she said was “my starting point for an official complaint.”  In her evidence, she said that, when DP referred to her as itinerant, she felt humiliated and ashamed and, for the rest of her shift, she was uneasy and upset.  She said that DP had made working in the hotel “completely unenjoyable.”  She said that she had brought her concerns to the attention of management previously but she felt that she wasn’t taken seriously and that the emotional distress that she felt at that time remained with her.  She referred to DP shouting at her in front of guests, calling her lazy in front of her colleagues, and making her cry on numerous occasions.  She said that DP frequently made sexual comments to her.

In her evidence at the hearing, the complainant said that in response to her feeling stressed, DP remarked that she “needed a good seeing to.”  In the small space where he was showing her how to turn on the disco lights, she said that he told her not to get any ideas.  In response to her comment that she was on top of her tasks at a wedding, he replied, “I don’t need to know how you do it.”

Harassment

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

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. 

Section 6(2) of the 1998 Act sets out the nine discriminatory grounds, the first of which is the gender ground, and the ninth which is the Traveller community ground.  I am satisfied that the remarks that the complainant complained about fall within this definition of harassment, as they were unwanted and a violation of her dignity and created a degrading and humiliating working environment.

Discrimination

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

Establishing that Discrimination has Occurred

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

85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

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

There is a conflict regarding the sexual comments that the complainant said DP made in the weeks before she resigned.  DP said that he didn’t make the remarks.  He said that the “itinerant” comment was not intended to be offensive, and that it was in response to the complainant saying that she moved around a lot.  He did not agree that the term is generally considered to be disparaging of members of the Traveller community and he referred to the Oxford English Dictionary’s definition of the term as meaning “travelling from place to place, especially to find work.”

I find DP’s explanation simply not credible.  Apart from using it in a disparaging context, no one uses the term “itinerant” in normal speech.  The fact that the complainant is from a Traveller background, and that the word was used to refer specifically to her, gives the lie to DP’s flamboyant explanation that he meant the word as it is defined in the Oxford English Dictionary.  I am satisfied that, when he referred to her as an itinerant, DP’s intention was to humiliate the complainant.  His response, “I am HR sweetie,” when the complainant said that she could report him to HR, is disturbing, considering that her grievance a year earlier ended with an entirely unsatisfactory outcome.

I found the complainant to be a direct and straightforward witness, telling her story without embellishment.  I find no reason not to accept her evidence that DP also made the sexual comments that she referred to.  However, as with her complaint under the Unfair Dismissals Act, I am uncertain when these remarks were made and it is likely that they were made more than six months before she submitted this complaint to the WRC.  For this reason, I have decided to focus my conclusions on the “itinerant” remark as evidence of harassment on the ground that the complainant’s background is in the Traveller community.

While DP’s public labelling of the complainant as an itinerant is grossly offensive, some might consider that, as a one-off comment, it should not be taken too seriously.  However, it is important to examine the wording of section 14A of the 1998 Act, and the focus on unwanted conduct and its effect.  A concise summary of the objective of the law in relation to harassment is in the decision of the Labour Court in Nail Zone Limited and a Worker[6]:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.”

It is apparent that the test for establishing if certain conduct constitutes harassment is a subjective one, and not based on the response of another reasonable person.  It is clear to me from the complainant’s evidence that the conduct she complained about was extremely disturbing for her.  Even before the “itinerant” remark, she described herself as “going in on myself,” meaning that she felt that she had to retreat, as if to avoid harm.  This is what the legislation means when it defines harassment as having the purpose of creating a hostile and intimidating environment.

DP is a senior manager in the hotel and the complainant was a 21-year-old girl from a Traveller background.  I can conceive of no motive for referring to her in public as an itinerant other than to humiliate and embarrass her.  I find DP’s explanation of his conduct to be ridiculous, not credible and disrespectful to this investigation.

Vicarious Liability

Section 15 of the 1998 Act provides that anything done by a person in the course of their employment shall be treated as if it was done by the employer.  The section also provides that it is a defence for the employer to prove that steps were taken to prevent the actions which are complained about.  Actions to prevent harassment include having in place a policy on harassment, training employees and managers on the policy and the proper management of complaints.

Comprehensive policies on equality and diversity and on bullying and harassment are included in the employee handbook, a copy of which was submitted at the hearing.  No evidence was given that managers or employees were trained on the policies.  While having a policy in place is a positive start, the promotion of a culture of dignity, respect and openness to diversity requires some effort and leadership.  The fact that the person who treated the complainant with such a degree of disrespect is responsible for human resources and the effective “owner” of the policy is a serious concern.

I also have a concern about the way the complainant’s grievance of 2018 was managed.  Her allegations were serious and, although DP attempted to detach himself from her complaints by challenging the accuracy of her dates, he accepted that he was “unprofessional” and that he was critical of her to other employees.  No evidence was submitted at the hearing that any action was taken by the management to address DP’s conduct in September 2018.  In the absence of any guidance or training, it seems that the “altercations” that the complainant described in 2018 were allowed to continue. 

When the complainant resorted to writing again in August 2019, there was no evidence to indicate that the management took any action to address the conduct she described.  Even without her involvement, the general manager had a responsibility to find out if there was substance to her allegations.  She may not have been the only employee subjected to DP’s disrespectful treatment.  When the complainant indicated that she would not attend the meeting, the general manager could have replied and asked her to attend with her solicitor.  He could have given her the option of writing to him in more detail, or of submitting written answers to questions that he would have asked her at a meeting.  He could have replied to her on August 15th and said that he would contact her again in a few days.  He could have spoken to the photographers.  Many things could have been done to establish that there was substance to her concerns.  From the perspective of the health and safety of all the employees in the hotel, the fact that the complainant decided not to participate in an investigation of her complaints should not have been the end of the matter.

Conclusion

Taking account of all the evidence, I am satisfied that the complainant was subjected to harassment by DP.  I find that the respondent failed to deal properly with a complaint in 2018, which could have prevented the continuation of DP’s disrespectful treatment.  I find that the harassment constitutes discrimination on the ground that the complainant’s family origin is in the Traveller community.

I have considered the issue of victimisation.  The complainant’s case is that the way she was treated when she made a complaint of sexual harassment amounts to victimisation.  The complainant submitted her complaint on August 13th 2019 and she left her job one week later.  She gave no evidence of any conduct that occurred during that week that amounts to victimisation.  For this reason, I find that her complaint of victimisation does not succeed.

I have concluded that the incidents that the complainant said caused her to resign on August 6th 2019 occurred outside the six-month time frame within which complaints of unfair dismissal must be submitted to the WRC.  I find that the distance between those incidents and the complainant’s resignation is too long to establish on a reasonable basis that they were the reason she resigned.  I decide therefore, that her complaint of constructive dismissal is not well founded.

In accordance with section 79 of the Employment Equality Act, I decide that the complainant was subjected to discrimination on the Traveller ground.  In accordance with my powers of redress under section 82 of the Acts, I order the respondent to pay her compensation of €10,000 for the distress that she suffered and for the effect of discrimination.  This award is for the infringement of the complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.

In accordance with section 82(1)(e) of the Acts, I direct the respondent to provide professional training to managers regarding the promotion of dignity and respect in the workplace.   

Harassment, sexual harassment, constructive dismissal, time limits