Complainant

Respondent

Parties

Claire  O'Neill

Paddy Browne's Pub

Representatives

 Sean Ormonde & Co.

 HD Keane 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-00022612-001

15/10/2018

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.

On 15 October 2018, the Complainants Solicitor lodged a complaint of Discrimination on grounds of gender with the WRC. On that day, further complaints were also made on Victimisation, Discriminatory Dismissal, Harassment and Sexual Harassment, where the most recent date of discrimination cited as 25 May 2018. Given the timeline between the submission of the complaint and the hearing date, I checked with the Complainant just prior to hearing whether all matters still stood, and he confirmed that there were no changes on content of the complaint.

The Complainant was represented by Sean Ormonde Solicitors and the Respondent by HD Keane Solicitors.  The Complainant was the sole witness in her case. The Respondent presented three witnesses with a fourth witness, Ms A absent due to a personal issue. The Respondent submitted four witness statements prior to hearing.

The last documentation received in the case was received from the Respondent and dated 9 November 2021.

A Preliminary Issue arose regarding the correct legal title of the Respondent, and I explained to the parties that I was obliged to hear both the preliminary and substantive arguments in the case. If the preliminary issue was decided in favour of the complainant, I would then move to a consideration of the substantive case in my decision. In the event, that the preliminary issue was decided in favour of the Respondent, then I was not required to include a consideration of the substantive issue in my outcome report. Refer Section 79(6) of the Act. Both parties would maintain their right of appeal to the Labour Court.

Preliminary Issue:

The Complaint form lodged with WRC at 10.35 am on 15 October 2018 detailed the name of the Company as Paddy Browne’s Pub. On 18 December 2018, the Complainants Solicitors submitted the following request to WRC

We refer to the above matter and wish to confirm that an error was made upon lodging this claim. The correct legal title is Andrew Kiely trading as Paddy Browne’s Pub. We would be obliged if you could amend the Respondents name to reflect the correct legal entity

The Respondent Representative came on record on 15 November 2018 and submitted an authorisation from his client cited as Andrew Kiely, Paddy Browne’s Pub and address.

On 19 December 2018, the WRC Administrative division responded with

Adjudication Services cannot make changes to existing complaint forms, and if you wish to make changes to the name you may submit a new complaint form with new details. The onus is on the complainant to ensure the correct name is given to the respondent. The rules on time limits apply to each individual complaint form.

On 3 September 2019 the Complainants representatives submitted a written submission on behalf of the complainant. This submission sought compensation in respect of the alleged acts of discrimination.

On 10 October 2019, the Respondent denied the allegations of discrimination.

A number of postponements of hearing dates on consent followed until the case was listed for hearing for 18 October 2021. Letters of notification of hearing were sent on 10 September 2021 and carried considerable detail on the changes in WRC procedures following legislative amendments on the passing of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and the Supreme Court case of Zalewski v Adjudication Officer and Or’s [2021] IESC 24.

The issue of legal title lay moot in the interim from 18 December 2018 to some three years later hearing date of 18 October 2018. The Complainant did not submit a new complaint form. I have not identified any inter party correspondence outside the engagements on postponement requests.

The Complainants representative submitted that he sought to rely on the legal title submitted on 18 December 2018 that of Andrew Kiely t/a Paddy Browne’s Pub. He contended that the complainant had corrected this title at the first opportunity, within the year and she ought not be disadvantaged. The complainant had not been provided with a contract of employment and she was not made aware of the correct legal title by the Respondent.

He argued that the legal entity was a Partnership, joint and severable and one partner was deemed in law to be liable for the other partner.

He sought to amend the legal title to reflect the true owners in Partnership law.

 I brought the P45 attached to the Complainants submission to the party’s attention. This document was not determinative in terms of a name of the Proprietor as Part 1 was missing.

Both parties agreed to address this point directly with Revenue and to revert to me. The Complainant did not follow through with this.

The Complainant representative referred to a separate complaint to the Data Protection Commissioner had not yielded a reference to the incorrect name of the Respondent.

Substantive Issue:

On 15 October 2018, the Complainant, through her Solicitor lodged a number of claims to the WRC under the Employment Equality Act, 1998. The Complainant submitted that she had been discriminated on gender grounds in the course of her employment 26 April 2018 to 25 May 2018. The Cessation certificate, raised by Revenue, places the complainant in employment 23 April 2018 to 24 May 2018.

 The Complainant submitted that she had been discriminated in her conditions of employment, in respect of opposing discrimination, harassed, sexually harassed and dismissed for discriminatory reasons. She cited the most recent date of discrimination as 25 May 2018.

The Complainant earned €10.00 per hour in her capacity of Bar Staff.

Solicitor for the Complainant outlined that the Complainant had interviewed for a Bar Staff position on 21 April 2018.

During her tenure, the Complainant had highlighted her concerns regarding the presence of a particular couple, Ms A and Ms B in the pub and their behaviour while on site.

It was the Complainant case that the Respondent did nothing to protect the Complainant against the behaviour of this couple and she was dismissed against pleas   made by her for her retention in employment. The Complainant found new work soon after her dismissal, but she carries a residual unease in how she was treated at the business.

By way of written submission, the Complainants representative detailed a number of untoward events which occurred on the respondent premises on Friday, 4 May 2018, where the complainant, in the course of her work, experienced hostility and insulting commentary from customers.

It was the Complainants understanding that the couple at the centre of the hostility were barred by the Manager on duty. This was subsequently disturbed and overturned by the Respondent which caused the Complainant to become anxious and questioned whether she could continue to work at the premises. The Respondent asked her not to leave and offered to increase her hours to 30 hrs per week.

The Complainant continued to question the permission granted for the customers, Mr A and Ms B to attend the Pub. The Respondent advised her to “think about it “.

The Complainant returned to work on May 22, 2018, only to be informed that she was not required at the business. The Complainant felt alienated and unheard by the Respondent.

What followed was her dismissal by text:

We won’t be offering you a contract at Paddy Browns, so therefore, your probation is over. We can’t run a business like this

This was confirmed by email dated 27 May 2018 and a request for a p45 followed from the complainant.

The Complainant Representative argued that the Respondent failed to protect the Complainant from “overt and hostile sexual harassment “in the workplace. He attributed the dismissal as linked to her gender and a direct result of the complainant raising concerns regarding how she was treated by the customers Mr A and Ms B.

The Complainant Representative submitted that the depth of the discrimination experienced by the complainant was at a “serious level” and warranted a high level of compensation for the effects of the acts of discrimination.

Evidence of the Complainant

The Complainant had experience of bar work. She had met Mr D, when he was home in Ireland and was hired without recourse to any paperwork.

On 4 May 2018, she was on duty with two Managers. Mr S was in charge on the night. The Complainant had been serving and stocking the bar and was rostered to close of business.

The Complainant outlined her recollection of the floor plan, which had a lounge, Snug and Bar as linked to each other at the Premises. There was an Off Licence adjacent to the Bar. The Lounge and Snug were open, and she recalled that an incident arose at “late enough, near closing “

She recollected hearing Ms B; a known customer of the business remonstrates at the counter regarding service. She said, “here we go again “The Complainant said she positioned at the door of the Off Licence.

Mr S reached the Lounge before she did, and she heard Ms B ask “Where’s (the complainant)? “She answered her own question, by stating in a “smart tone “that the Complainant was probably engaged in a sexual act with a named manager.

Mr S dismissed this comment and prepared the pint requested and told her that it was to be the last pint. Ms B returned to her seat.

Later, Mr A came to the counter and the complainant served him. She told him what Ms B had said and that she was not inclined to serve Ms B until she apologised. Mr A disputed her account and demanded the drink with an expletive. The Complainant submitted that she was not liked by these customers as their daughter had gone for her job.

Ms B approached the Counter and denied the earlier statement, but the Complainant did not accept the denial and remonstrated with Ms B.

The Complainant sought out Mr S who confirmed with Ms B that she had made the statement of the sexual act. Ms B went home leaving Mr A drinking in the bar.

Mr A verbally attacked the complainant and Mr S and he argued. Mr S stood up for the complainant and barred Mr A and Ms B. The incident was placed on group chat and the owner, Mr C notified. The Complainant recalled hoping they wouldn’t be allowed back in.

The Complainant understood from the Manager that Mr C intended to discuss the matter directly with her, but he didn’t. She was off duty the following Sunday and the quality of her work was not mentioned by him.

Mr C dismissed the topic of Mr A and Ms B. The Complainant submitted that she mentioned her unease at what had happened and was reassured that her job was still there by Mr C. However, no shifts followed. The Complainant had confirmed that she was available for her usual 30 hrs work.

She arrived to work the following Wednesday, 23 May and she couldn’t get Mr C to address the issue. Mr C approached her screaming for her to get out that she wasn’t on approved duty. There were customers present in the pub.

At this point, the complainant clarified that she had made an error in the timeline that she had associated with occurrences in the case. The incident in the bar was now attributed to Friday 18 May, rather than Friday, 4 May 2018. She was not in the premises on 20 May.

The Complainant had difficulties in recall of the sequence of events at that point and in relation to the pre termination phone calls. She confirmed that she had been paid for the week she was absent 21-27 May 2018. She recalled responding in denial to a rumour that she intended on taking legal action over the occurrence on 18 May.

The Complainant detailed that the Respondent had not disclosed a dissatisfaction with her work performance. She submitted that Mr A and Ms B were friends of the owner and she suggested that that the absence of any explanation by the respondent was prompted by their desire to keep these people as customers. Evidence was available via cc tv with sound.

The Complainant stated that she had reacted negativity to her treatment with the respondent and had suffered a series of “breakdowns”.

She was clear that the incident of 18 May 2018 was not discussed by the owners with her. She was informed that the “bar “had been lifted by Mr C. She was dismissed by text and denied any engagement on the matter. She collected her wages and never met Mr A or Ms B again.

During cross examination, the complainant could not be certain on the time surrounding the occurrence on 18 May 2018. She said there were 2/3 customers present, and it was “quite late “

The Bar, where she had been previously employed, had closed for 3 months in February, 2018and re-opened in May 2018.

She re-affirmed that she heard the offending remark as she was going from the Off Licence into the bar. She recalled that she was working next day, and Mr C was present, but could not isolate the time.

She qualified this by stating that Mr C was not there long and that he had directed “in a minute, in a minute to her “when she sought to address him. He did not discuss anything.

The Complainant stated that she felt sure that Mr S would have passed the relevant details of the occurrence to Mr C.

She confirmed that Mr Shad barred the couple and there was no written record of the incident. There were 8 constituents on the group chat inclusive of both owners. She affirmed that her priority was to keep her job.

In response to question on whether she wished to tender medical evidence in support of her contention that she had experienced a “breakdown “in response to her experience at the respondent employment, the complainant qualified that she did not have evidence, as she had not consulted a doctor.

The Complainant confirmed that she had not been provided with employment policies. She had worked in Bars for over 9 years and contended that she had not been treated right by the Respondent.

She stated that she was abused by the customers and the respondent took their side, without reason.

She went on to confirm that she had been addressed as a “Cow” by Mr A, and this wouldn’t have happened to either of the two Male Managers.

She explained the delay in raising her claim as first approaching a Union, but as she hadn’t been a Member, she went to a Solicitor in June 2018.

In closing remarks, the Complainants Representative concluded that the complainant had satisfied the burden of proof in the case and the facts pointed to Victimisation and a clear example of gender discrimination.

The case was not covered by a proper investigation. The Complainant was treated differently than her Male counterpart, who despite adopting the same position of not wanting to work in the face of an absence of a ban of the abusing couple, his employment was maintained whilst the complainants was terminated.

Case Law relied on:

Odion v Techform (Waterford) ltd DEC E 2007-018

Gabriele Piazza v The Clarion Hotel DEC E2004-33

A Worker v A Hotel [2010] ELR 72

Citibank v Ntoko EED 045

The Respondent Representative outlined that the business name attributed by the Complainant to the Respondent was not in existence. He explained that Andrew Kiely was the owner of the business and was based in UK.

 He clarified that the Respondent had to accept partial error, but the correct legal title was Patrick and Andrew Kiely. This was a Partnership in business. When asked if the Respondent was agreeable to amending the legal entity on consent, the Respondent refused to amend the title.

The Representative contended that the joint names of the owners were visible to all on the 7-day Pub Licence. The matter must now be considered as out of time.

Following a break, the Respondent accepted that the title Paddy Browns was listed as the Employer name on the complainant’s wage slips up to May 2018, but this entity was not listed on anything else. The CRO listing for the Business would not have recorded Paddy Browns Bar.

The Respondent accepted that a name change would not be prejudicial to his clients.

On 5 November 2021, the Respondent representative confirmed that his clients had been unable to secure a Part 1, P45 from Revenue as this was solely in the reach of the Complainant. He reaffirmed the correct legal title as Patrick Kiely and Andrew Kiely and this “is the only name which could conceivably have been printed on the P45 received by the applicant “.

The Respondent confirmed that the issue before the Information Commissioner had closed on 16 August 2019 without any issue arising.

Substantive Issue:

The Respondent came on record through their Solicitor on 15 November 2018 when discrimination was denied against the complainant.

On 9 September 2019, Respondents Solicitor, in response to the Complainant submission, sought clarification on narrowing the detail surrounding the incident attributed to May 4, 2018.

The Respondent had not filed a written submission in response to the claim but had submitted 4 witness statements prior to hearing. Three of whom went on to attend at hearing.

The Respondent disputed the claims advanced by the Complainant. They set the scene that the Pub was in its infancy post opening and had hired some staff who had worked at the business previously, one of whom was the Complainant.

It was the Respondent position that the Complainant had referred to one occasion in her allegations, which were not serious. The issue she referred to had been carefully investigated by Mr C, one of the owners, who had approached the customers directly as a result and understood the issue had resolved.

The Respondent was not satisfied with the complainants conduct. She had dared the Respondent to end her employment

Evidence of Mr C, Owner

Mr C outlined that he had 35 years of retail experience. He stated that he first learned of the incident at the centre of this case on Saturday, May 19 when he went to the Business. He did not know the Complainant prior to her being hired.

He learned that Mr A and Ms B had presented as “a bit of a problem”. There had been a row they had insulted the complainant by saying things to her while waiting for a drink for 10 -15 mins. He responded by saying “that’s unusual “

He knew the couple from his shop and drove down to their home. He was informed that they had been left waiting 15 minutes for a drink. Ms B likened that practice to that of a previous management. Mr A confirmed that he had used language against the complainant, but he backed up Ms B in her “wait complaint”

Mr S, the Pub Supervisor had told Mr C that the couple had been barred and Mr C distanced himself from this, by stating that Mr S did not have the authority to bar customers.

Mr Shad told him that both he and the complainant would not go to work if the couple were allowed return.

He recalled standing at the counter that evening and tried to place a context on the outburst as he told the complainant that they had been waiting 15 minutes for a drink and it was no wonder they turned on her. The Complainant was demanding they were both barred, and Mr C disputed the need for this as Mr A had agreed to go up Sunday morning and apologise to the Complainant.

Mr C confirmed that he had chastised the complainant for the extended wait for service, but he was not made aware of the depth of the conversation between the couple and the complainant on the night of 18 May 2018.

He stated: she did not specify what went on, I was not told

The Complainant told him if the couple were not barred, she was not going to work. He omitted her from his formulated roster.

The Complainant presented for work on Wednesday and Mr C asked her to leave. He agreed to consider the occurrence of May 18. Mr C confirmed that he spoke to the complainant on the phone the following Sunday, where he was clear that the couple would not be barred. He was influenced by their reports of their extended wait times.

He explained that he had observed the complainant intoxicated and she was never on time.

Mr C clarified that “barring “was reserved for Intimidating People.

He genuinely understood that his intervention with Mr A and Ms B on 19 May had been effective. He understood that they were to temper their language and he anticipated that they were going to apologise. He had endeavoured to hear from both parties affected and affirmed that he stood up for all of his staff.

He confirmed that the business did not have a Policy on Harassment and policies were difficult to implement.

During cross examination, Mr C confirmed that he had 17 employees and the bar was only open for business for 4 days when the incident referred to in the case occurred.

He denied not asking the complainant what actually happened? He denied that he had not taken her side. He had received feedback from both Mr S and from the Complainant.

He rejected the assertion that he had not asked the complainant if she had been assaulted and had just made his own mind up.

What happened did not equate with a barring offence and that matter had been investigated.

Mr C clarified that no written records had been retained. Mr S had been requested to document it. He did not have record of the incidence of intoxication. The matter had not been addressed to the Security presence on the door.

Mr C stated that he had not checked up on whether the pro-offered apology from Mr A and Ms B had been received by the complainant.

He confirmed that he had received Equality Training through his previous business but was unable to timeline this.

He confirmed that a list of “undesirable “customers were discussed prior to Opening date, but Mr A and Ms B were not included on this list.

He confirmed that specific customer service training had not occurred as the staff were all experienced people.

He qualified that he had sourced the Couples address from their time in his other business. He confirmed that he had not seen the group chat referred to in the complainant’s evidence, nor had she produced it in evidence.

He re-affirmed that Mr S was his source on the incident of May 18, where he referred to the treatment as “insulted “and “reared “up on her.

He confirmed that a review of CC TV footage had validated the 15-minute delay, but he had not produced in evidence. Mr Shad denied this, saying it was 5 minutes. He denied deliberately keeping the CC TV out of this case. He affirmed that “common sense “told him what had occurred and disputed that he had spoken with the customers before the complainant.

He denied that the complainant was on duty on the Sunday post the incident.

He concluded an elaborate investigation, the methodology relied on from his other business and performance appraisal was of the informal nature.

Evidence of Mr D, Owner

Mr D had vast experience in Pubs across Ireland and UK. He hired both Managers and the Complainant. He was influenced by the fact that she knew customers and he decided “to give her a go “

He first learned of the incident on Saturday, May 19 from Mr S via the group message. He called Mr S and informed him that Mr C would call over to address the matter.

The Roster was done in tandem and both Mr S and the complainant formed the position that if the business decided to serve Mr A and Ms B then they would not come to work.

One week later, the complainant text to meet up. They planned to meet at 10 am nut the complainant was a “no show”

He informed the Complainant she was no longer needed at the business.

By then, the Complainant had not linked her reported anxiety to the incident. There were clear issues of time keeping and glass washing with the Complainants performance.

Mr D confirmed that he had taken responsibility for barring 12 people at the business. There had been a legacy list.

He denied that the couple’s daughter had coveted the complainant’s job as she had worked in s supermarket for 4 years.

During cross examination:

Mr D reaffirmed the breadth of his experience in Hospitality. He had a working knowledge of employment policies which were outsourced at the UK business.

He recollected real pressure to get the business to opening level in May 2018. Contracts were at planning stage.

He confirmed that CC TV footage had not been retained as the circumstances of this case were not foreseeable. He was unaware of the audio dimension that he subsequently learned from former staff.

He had no recollection of being told that the complainant intended to take a course of action against the business and qualified this by saying that staff issues were not properly in the domain of staff during his tenure.

He decided to terminate the employment over the course of a week as he was not satisfied with the complainant on probation.

He accepted that it was not acceptable for customers to insult staff but suggested that the name was not gender specific.

Mr D was not present at the business in the immediate aftermath of the events of May 18. He had hired 6 staff for the business. It was his clear understanding that an apology was to be affected by the couple and that stability would follow.

Mr S explained that Probation was 3 months duration. He was not impressed at the ultimatum issued by Mr S and the complainant.

Mr S clarified that Fire Certificate and Licence had been obtained by the opening date but not contracts of employment.

Evidence of Mr A, Customer

Mr A recalled being a customer in the company of Ms B. He observed a commotion and shouting emerge between Ms B and the Complainant.

He told Ms B to sit down, and he would get the drinks. He put the time at 7pm. He confirmed that he had used words of profanity towards the complainant.

By 10.30 pm, he was refused service by the Complainant.

He recalled Mr Cs visit the next day. He agreed to make arrangements to go to see Mr S and to pass on his apologies. He was joined in this plan by Ms B. He didn’t see the Complainant after this day.

He explained that the snug was 10 feet from the bar and accepted that he was drunk and “over the top “

During cross examination, Mr A re-affirmed the verbal exchange with the complainant. He confirmed one of the names may well be directed at a man but the second, no.

Mr Cs visit lasted 10 minutes to his home kitchen.

Mr A confirmed that he returned as a customer the following week and had not been barred. He referred to a previous occasion, two months past where he witnessed the complainant in an unorthodox setting in his home, where he asked her to leave.

In conclusion, the Respondent Solicitor summarised that the Respondent in the form of Mr C had done his best to defuse and resolve a contentious situation. He adopted the role of Peacemaker. He acknowledged that he had not led with a formal investigation but contended that he was concerned for the public image for his business.

He concluded that the Complainant had not submitted evidence that her dismissal was linked to her gender.

The term used by Mr A was a term of common language and gender neutral.

The Respondent was not satisfied with the complainant’s performance at work and the events of May 18 emphasised this thin ice and brought it to a head.

The Complainant had not made a complaint of sexual harassment to the respondent.

The Respondent had a recognised practice of “Barring “customers which was not applicable to the couple on May 18.

The Respondent was faced with an unsolicited ultimatum where the Complainant threatened the Respondent that she would not work if the couple were permitted entry.

The Respondent had secured an undertaking from the couple that they would both apologise. The Complainant was not the subject matter of any form of discrimination.

Preliminary Issue:

The first matter for decision in this case surrounds a consideration of the correct legal entity named on the complaint form and that attributed to the Respondent at hearing. This is an important consideration at the very outset of every case and precision is vital in that regard as this decision, at first instance, may well in time come under appeal to the Labour Court, by either party or indeed may become the subject matter of an enforcement order.

I propose to deal this matter in accordance with Section 79(3) (a) of the Act, where:

3A) If, in a case which is referred to the Director General under section 77, a question arises relates to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact,

the Director General may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

The field of employment Law has expressed a consistent interest in this topic in cases such as Ann Aziz v David Jones and John Smyth DEC-E2014-026 at Equality Tribunal, where the Complainant had tendered the incorrect name of the Respondent. Subsequently at the Labour Court in Ballarat Clothing ltd v Aziz in EDA 1/2015, where the then Deputy Chair remitted the case back to the Equality Tribunal.

In the first case, the then Equality Officer, following careful consideration, decided that the claim was misconceived in law and dismissed the complaint. He emphasised that the correct employer was clearly visible for the employee on the contract of the employment. The Labour Court expressed a different opinion and drew on O Higgins v UCD [2013] 21 MCA, where Hogan J stated:

“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). …In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”.

 The Labour Court also considered the case of Travelodge Management ltd and Sylvia Wach, EDA 1511, where the respondent had not made an appearance at first instance. On that occasion, the Court stated:

The Court has no doubt that the Complainant named the wrong Respondent in her claim as a result of a bona fide mistake. That state of affairs may well have been compounded by the fact that the Respondent appears to have held itself out as the Complainants employer in earlier proceedings. Moreover, the Respondent accepted proceedings in the within case and failed to deny that it was the complainant’s employer until the initiation of this appeal, some 30 months after the claim was first initiated.

The Court drew on the seminal case of Louth VEC V Equality Tribunal [2009] IEHC 370, on whether proceedings before a statutory tribunal can be amended and quoted:

If it permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.

The Court in Travelodge found that this collided with the provisions of S 77(5) of the Employment Equality Act, where a complaint under the Act must be referred within a period of six months from the occurrence of the event, with a possibility of an extension of a further six months for reasonable cause shown.

The Court found that it could not substitute the name of the Respondent on that occasion and flagged that the complainant in that case had initiated fresh proceedings against the correct employer. The decision of the Equality Tribunal was set aside.

The Labour Court went on to consider the case of Auto Depot Limited v Vasile Mateiu in DWT 1922, on appeal in October 2019

On this occasion, the Court considered complaints under the Unfair Dismissal Acts, Payment of Wages, Terms of Employment and Organisation of Working Time Act. The Employer named at first instance was Auto Depot Tyres ltd.

The Court addressed the considerable jurisprudence on this issue and distinguished the application of S 39 (4) of the Organisation of Working Time Act, 1997 in terms of amending proceedings, a decision or substitution of one respondent for another.  The Court clarified that S 39(4) applied to an application for a fresh complaint concerning the same matter against the correct respondent, without falling foul of applicable time limits.

The Court went on to consider:

Whether or not it is legally permissible for the Court to accede to the Complainants application to substitute in the correct respondent in this case.

The Court captured the jurisprudence of Wach, but was drawn to the High Court case of Capital Food Emporium (Holdings) ltd v Walsh and Ors [2016] IEHC 725

Here, Barrett J had distinguished in a number of “significant respects “in Sandy Lane (relied on in Wach) and the instant case.

The Court applied this distinction to the facts of Auto Depot and found that

a.       The Company Director had received carriage of the WRC complaint titled Auto Depot Tyres ltd. The Company, while incorporated had never traded or employed anyone.

b.       Both legal entities in question shared the same registered address as opposed to Sandy Lane where two jurisdictions were pitched.

c.       The Company Director was on notice of the employment complaints early on and passed the documents to the Solicitor

d.       No issue was made of the correct or incorrect respondent until eight months post notification of the complaints

e.       The Complainant had not been provided with a contract and joined employment following trading difficulties in a previous familial business.

f.        The Complainant had made genuine efforts to pursue the identity of his employer at CRO

The Court went on to draw from Hogan J Judgement in O Higgins and Judge Walsh in the Supreme Court in the seminal case of Halal Meat Packers ltd v EAT [1990] ILRM 293 when he stated:

This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is rather ironic turn in history that this Tribunal which was intended to save people from ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity

This case addressed the EAT refusal to exercise a discretion on additional grounds inserted on a Notice of Appeal in allowing the Respondent to be heard.

The Labour Court found that the “erroneous inclusion of “Auto Depot Tyres Ltd “on the WRC complaint form amounted to a technical error and the Respondent name could be amended to the correct legal title of “Auto Depot ltd “

I have given a lot of thought to the Complainant Solicitors application to amend the Complaint form to the legal entity of Partnership led by the Respondent during this Preliminary Issue.

In my practice as an Adjudicator, I have frequently, with the assistance of the parties, identified an error in the legal entity pro-offered by either party during complaint formulation or in response.

 I have frequently had to have recourse to the CRO search engine to secure clarification to that end. I have habitually found Parties to take a pragmatic and business-like approach to agreeing to amend that title on consent. I have understood that pragmatism as both parties were present in the hearing room, frequently authors of extensive submissions and keen to participate in a through put of the case to conclusion.

The parties in the instant case positions have adopted slightly different perspectives, both of which have required probing.

I find that the Complainant tendered the respondent’s name exhibited on the pay slip on submission of the complaint form, 15, October 2018. The Complainants representative sought to amend this some 8 weeks later 18 December 2018. They did not act when the WRC advised formulation of a new complaint, given that “a business name change “was not within the gift of the administrative section of the WRC.

The Respondent was notified of the claim on 16 October 2018 at the Business Premises. On 15 November 2018, now represented by a Solicitor declared that:

“For the record, my client is extremely surprised at the content of the complaint and is unaware of any discrimination on his part against the Complainant “

The Respondent was listed as Andrew Kiely, client.

The Complainant submitted a written submission on 3 September 2019, where the Respondent was referred to as a private limited company.

I reviewed the electronic file and found several derivatives of legal title throughout. The Complainant was consistent in the application of Paddy Browne’s Pub. The Respondent referred to clients singularly and as a duo. Even the notification of dismissal alluded to

 “Termination has come to an end with Paddy Browns Bar”

The matter of a correct identification of Legal title lay dormant until the hearing date of 18 October 2021.

I listened carefully when the Respondent refrained from consent to agree an amended legal title. Their argument that the correct legal title was universally visible to all on the 7-day Pub licence. They accepted that the pay slip contained Paddy Browns in the section for Employer name.

The Complainant actively sought to amend the title and submitted that they had acted on this in December 2018.

I have identified an unhelpful inertia in respect of the complainant in respect of the December 2018 application.

However, I have also identified an unhelpful approach by the Respondent when they repeatedly rebutted the complaints notified by the WRC and did not take the time to clarify the legal title.

I have found that the Complainant had previously worked at the same premises under different ownership. The pub had closed and was subsequently purchased by both owners who presented as Respondents in this case, who in turn employed the Complainant at the business.

It is clear to me that the business had not adopted a due diligence in preparing appropriate employment documentation in parallel with their preparation for the obligatory 7-day licence.

The sole independent document I had linking the complainant to the business was the pay slips dated up to May 2018. She was not furnished with a contract of employment. The P45 was presented in part by both parties, and I have been unable, despite an undertaking from the complainant to produce part 1 of the document which might have directed me to the correct legal entity much sooner.

I must conclude that there was a visible carelessness exhibited by both parties in relation to identifying the correct legal entity for the purposes of this case.

I accept that the business is run as a Partnership. This does not obligate the parties to register on CRO.

I accept that the parameters of Section 39 Organisation of Working Time Act, 1997 have no application in an Employment Equality case, such as this is. I have also considered the parameters of Section 77(6) of the Employment Equality Act, 1998 on whether a delay by the complainant in referring the case arose from misrepresentation by the respondent. I have not found that applicable.

Instead, in following the test set down in Capital Food Emporium (holdings) ltd, I find that:

1.       One member of the declared partnership had received notification of the complaint on 16 October 2018. I appreciate that this member of the partnership was bi locational between Ireland and UK at that time.

2.       The business address corresponded with the location of the business proper, the Pub.

3.       The Partnership, through Mr Andrew Kiely, was on notice of the complaint and passed the complaint to their Solicitor who communicated a rebuttal.

4.       No issue was made of the correct legal title until the hearing day, some 3 years post submission of the complaint

5.       The Complainant had not received a contract of employment, the pay slip reflected the employer title paddy browns

6.       The Complainant did not adopt a purposeful approach in identifying the correct employer by referencing that it formed a private limited company

7.       All parties were present on the hearing day.

This is a complaint of discrimination and victimisation.  I have decided that the Complainant has the right to be heard in this case. In reaching this decision, I am guided by the Higher Court Authorities of

1 Ballarat Clothing Company

2 Auto Depot

3 Travel lodge

4 Capital Food Emporium (Holdings) ltd

5 Louth VEC

And most acutely in Higgins v UCD where an exclusion was painted as a “grossly disproportionate response “

The Respondent Solicitor confirmed that the Respondents would be inconvenienced but not prejudiced by the amendment of the legal title. I find that amounts to an accurate assessment of the prelude to this case. In following Louth VEC, the Complainant confirmed that the content of the complaints remained unchanged from October 2018.

It is my honest opinion, that had the Proprietors of the business dedicated even a fraction of their time to establishing well defined employment contracts and pay slips for staff from the moment of hiring, I would not have had to engage in this lengthy analysis of just what the correct and just way forward in this case should be.

I have found that the correct legal entity in this case is

Pat and Andrew Kiely

T/ A Paddy Browne’s Pub  

The Respondent cannot be prejudiced by this change.  

I hereby make a technical adjustment to the first named respondent Paddy Browns to that effect and in so doing apply the logic and fairness contained in Auto Depot drawn from Capital Food Emporium and O Higgins v UCD.

The case will now proceed to a consideration of the substantive case.

Substantive Case:

I have been requested to investigate the claims of Discrimination on the ground of gender, discriminatory dismissal, Harassment, Sexual harassment and Victimisation contrary to the provisions of the Employment Equality Act, 1998, as amended?

This case came to hearing some three years post submission and was prefaced by a number of postponements.

In arriving at my decision in this case, I have undertaken an extensive investigation of the facts as presented. I have also taken into consideration the oral evidence adduced, the written submissions and legal submissions.

It was important for me to understand the context and background of the employment setting outlined in this case. I accept that this was a Pub in its infancy of trading in May 2018, where a number of staff were employed from a previous regime at the Business.

I accept that employment in a Pub setting may have “frontier “challenges at intervals in terms of crowd control, customer services and the influence of intoxicants. However, the Business needs to be equipped and fortified with robust employment policies to protect employer, employee and indeed, customers.

 I found a distinct lack of preparedness when I assessed the presence or not of employment policies, pay slips and other employment related documentation in this case.

 I appreciate that this was a Pub re-opening into an uncertain market, but much of what followed occurred against a business bereft of tailored employment policies which stood in sharp contrast to the timely preparedness of the trading licence and Fire Certificate. I make this observation at this point of my findings as I am hopeful that both parties will reflect on this and take something from it.

The burden of proof required of the Complainant in this case   is set down in Section 85A of the Act and formulated by the Labour Court in Mitchell v Southern Health Board [2001] ELR 201.

This places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If these facts are found as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent. Nevins, Murphy, Flood v Portroe Stevedores [2005]16 ELR 282

The Law in this case.

Discrimination for the purposes of this Act.

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6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i)      Exists,

2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

Section 8 of the Act prohibits discrimination in an employment setting.

Discrimination by employers etc.

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 14 A (1) outlines the law on Harassment

Section 14(7)(a) defines harassment as

(i)      References to harassment are to any forms of unwanted conduct related to any of the discriminatory grounds

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

Section 15(1) covers the Law on vicarious liability

Liability of employers and principals.

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

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

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

(a) from doing that act, or

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

Section 74 (2) outlines the law on victimisation

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

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

(b) any proceedings by a complainant,

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

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

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

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

I am conscious that in the context of cases of discrimination cases, the importance of recalling not only what is done but the thought processes involved make it all the more likely memory fad will have an impact on the cogency of the evidence. Redhead v London Borough of Hounslow UK EAT /0086/LA, Para 70.

In my investigation of the facts of this case, I took cogniscance of the timeline associated with the hearing in this case. The impact of which was very clear in the Complainant evidence, which I shall return to in time.

In addition, while I received 4 witness statements on behalf of the respondent prior to hearing, I was met by three witnesses for the Respondent at hearing.  I learned that Ms B was not available due to personal reasons.

I found some disparity between the written statements and the oral evidence from all three witnesses, and this is something that I will return to. The Complainant has not tendered any medical evidence in her case .

Findings:

The Complainant had been employed for three weeks at the time of the occurrence of the verbal exchanges from customers on May 18, 2018. The WRC complaint form dated 15 October 2018 did not contain particulars of claim. These were eventually furnished, some one year later by means of written submission where Friday 4 May 2018 was the date associated with the allegations in this case.

This was not altered and not challenged outside a blanket rejection of claim by the respondent, until the Complainant, visibly frail and vague in her evidence corrected this date line and amended it to May 18 ,2018 in the course of her evidence to the instant hearing. This was a very significant lapse of recall and cataloguing from my perspective.

However, both parties accepted that May 18, 2018, was the true date of the occurrences and that the Complainants employment ended on May 25, some one week later.

In assessing the facts of the case, I accept the Complainants evidence on the balance of possibilities that she was the subject of an unwelcome remark regarding her sexual activity from Ms B and follow up profanities from Mr A in the course of her span of duty on Friday, 18 May 2018, which have disturbed her greatly.

In this, I find that she has satisfied the burden of proof and established an “evidential nexus” between this unfair treatment and her gender. Mr A collaborated his statements made to the complainant and sought to apply a gender-neutral citation to one of the remarks. I did not have the benefit of Ms B evidence and the statement submitted had no probative value.

 Mr S, the Bar Supervisor, to whom the initial remarks attributed to Ms B were made, was not regrettably made available to the hearing, I found the Complainants evidence, whilst initially vague was ultimately compelling and persuasive.

I did make a request for a floor plan from the respondent to help me consider the logistics of the settings for transfer of sound, but this was not forthcoming.

The probative burden now shifts to the Respondent, where cogent evidence is required to rebut the presumption of discrimination.

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.

I am satisfied that a customer service arose during the bar opening period on May 18, 2018. I am also satisfied from the evidence that customers Mr A and Ms B were engaged in verbal abuse towards the complainant. I understand that the Respondent viewed this verbal abuse as a proportionate response to being kept waiting for service in the bar. It was unfortunate that Mr S was not made available to the hearing. I find that he was the main witness to the first utterance by Ms B and the complainant was a secondary witness, albeit some distance apart. I can understand that the commentary was perceived by her to be highly offensive, and she was upset by it.

In the most profound omission in this case, this incident was not recorded by anyone. I accept that the matter may well have been placed on a group text, but neither party presented that at hearing. I understand that CC TV footage may have assisted the process, but this was not probed for sound.

I listened carefully to Mr Cs evidence. I accept that the incident was expressed to him in general terms, and he was left to figure it out for himself. He called on his retail experience and interpreted it as a customer service issue and sought to act promptly to “pour oil on troubled waters “by visiting the customer’s home. He did not stop to take collateral from the Complainant or firm up on Mr S report. He did not initiate an investigation. He analysed the issue as a public relations issue for his newly opened business and did not understand that the occurrence was covered by the Employment Equality Legislation where employees are permitted to be assured of workplace free of discriminatory remarks.

In Code of Practice on Harassment SI 208/2012, the mission statement reflects “working towards the elimination of discrimination in employment “The code reflects that sexual harassment and harassment “pollute the working environment and can have a devastating effect on the health, confidence, morale, performance of those affected by it “  

I find that a reasonable employer would have provided the employee handbook, contract of employment and customer service policies commensurate with the opening of the business. A reasonable employer would have interviewed the complainant and the customers to capture the allegation and response before deciding which persons version to advance. Other witnesses and there were witnesses present should have been interviewed.

In Boys Secondary School v Two Female Teachers DEE 021 the Labour Court held that the exhibition of sexually offensive papers constituted sexual harassment for which the school was directly liable as they had a “concomitant duty to take all reasonable steps to provide a workplace free of sexual harassment “The School was found not to have exercised control to prevent or reduce the effects of the harassment.

In the instant case, I find that both the Complainant and Mr S did form a “moat “around their employment relationship when the Respondent was informed that they were not prepared to work at the business if the customers were reinstated as customers.

This should have heralded a red light to the Respondent to look behind this defensive and “awkwardly articulated “position as a cry for help, but it did not. Instead, this approach was interpreted as an ultimatum and fought head on by the Respondent.

This situation was not aided by the lack of employment policies, incident report sheets or customer service complaints policy. On balance, the complainant did not retain an aide memoire either.

I accept that the complainant experienced both harassment and sexual harassment in the context of her employment on May 18, 2018, and the Respondent is not permitted to avail of the defence in S14A (2) as the organisational knowledge of the verbal attacks was known by the respondent managers who failed to act in a reasonably practicable manner to cease or reduce the effects of the behaviour. It is my opinion that the Respondent was not adequately versed in Employment Equality Law and must be considered directly liable for both occurrences and the distress which resulted.

I will reserve some commentary for the initial response of the Respondent business to bar the customers only for this to be overturned short of 24 hrs late on the undertaking of an apology which did not materialise. There was no policy on barring customers, and it seemed to me that legacy practice from a previous business was relied on here. The Complainant told the hearing repeatedly that her manager colleagues were fully aware of the full content of the verbal attacks on her, and she was fully sure that they were fighting her corner for her. I found no evidence of advocacy in that regard.

I found that the complainant assumed that the business was fully aware of the content of the verbal attacks. Mr Cs evidence at hearing was very credible that he was not informed of the parameters of the attacks. However, I must conclude that he did not take reasonable steps to inquire, and the matter was regrettably minimised.

The claims for harassment and sexual harassment are both well founded.

Discriminatory Dismissal

I have been asked to decide whether the Respondent terminated the complainant’s employment on grounds of gender.

The dismissal in this case was affected by text on 25 May 2018. It was described at hearing by Mr D as resulting from an unsuccessful probation and performance issues. This dismissal was not prefaced by a discussion, performance appraisal records or notice that dismissal was inconsideration. The Complainant was of the opinion that she was working well, and this had been endorsed by Mr C. Mr C disagrees with this and Mr D evidence is the most illuminating on this. He told the hearing that there was an organisational fatigue on the ultimatum which Mr S and the complainant were placing at the feet of the respondent. He found this unconscionable and incompatible with continued employment.

There were no records of the management of the dismissal from either party.

In Daughters of Charity v Mc Ginn EDA 039, the Labour Court held that failure of the employer to maintain interview notes and assessment record was fatal to the defence against allegations of discrimination. This case concerned a promotional opportunity.

On the evidence, it was accepted that Mr S the co participant in the ultimatum was maintained in employment, whereas the complainant was summarily dismissed and did not attend a meeting agreed with Mr D.

I can appreciate that emotions were running high on both sides that week, but it is regrettable that that meeting did not occur as I recognised that Mr D had a knowledge of correct employment practices, and the situation could have been resolved amicably. The fault for nonattendance at that meeting must lie with the complainant.

I recognise the primacy of Section 16(1) of the Act

Nature and extent of employer’s obligations in certain cases.

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Section 16(1) provides a defence to the employer in this claim. I do not accept the complainant’s application of S 16(3) in this regard.

However, I found that the ultimatum which irked the respondent was orchestrated by two employees, one male and one female.

I have identified from the evidence that the female was treated differently to the male in this regard. I understand both respondent evidence that they were confused by the complainant’s behaviour in the aftermath of May 18, and she was indecisive regarding her work which they both viewed as provocative and manipulative. In short, they viewed her behaviour as disloyal and a necessary distraction from launching a business in infancy.

I am obliged to consider the facts of this case to examine whether the complainants gender played a part in her dismissal. I have found on the balance of probabilities that it did.

The Respondent did not manage the fallout from the incidents of what I have since found to be harassment. It did not have the tools at their disposal and took the path of least resistance when they terminated the complainant’s employment on 25 May by text.

I found this to be both careless and callous and stood in sharp contrast to the retention in employment of the Supervisor, Mr S.

I must add, however that the complainant exhibited blameworthy conduct here. she told me at hearing that she had 9 years’ experience in bar work. I would have expected her to have attended the agreed meeting with Mr D and argue her case directly or with a representative. I find that her participation in the ultimatum did not do her justice and was an unorthodox and provocative action to her detriment.

I have found that the claim for discriminatory dismissal is well founded.

Victimisation

S74 (2) of the Act provides a definition of Victimisation

I have established that the Complainant did not formalise a complaint of discrimination with the Respondent. Instead, the Organisational awareness rested on Mr S, who appears to have conveyed a version of events to Mr C, but it was not committed to a record. The reference to group chat and cc tv has not been made available to my investigation.

I have not found the complaint of Victimisation to be well founded.

I have concluded my investigation in this case. I have found that the Complainant was discriminated against by the Respondent during the verbal outbursts of customers on May 18, 2018 and subsequently in her dismissal .

1. I have found that she experienced both Harassment and Sexual Harassment as a consequence of the utterances and she had carried the effects of that discrimination.

I order the Respondent to pay the Complainant €25,000 in compensation for the effects of the discrimination, the effects of which endured due to non-resolution in the workplace. This amount does not attract tax.

2 I have found that the Complainant was discriminatory dismissed, and I award €5,000 in compensation for this act.

3 I have not found merit in the complaint for Victimisation

I also order that within 3 months the Respondent must provide training to everybody involved in their business on employment equality , with special emphasis on harassment and sexual harassment.I also order a training module on customer service .

I also order the Respondent to introduce an incident report system with retrievable records for the business.

Complaint of gender discrimination, victimisation, discriminatory dismissal, harassment and sexual harassment