Complainant

Respondent

Anonymised Parties

Leisure Club Attendant

Leisure Club

Representatives

Self

David Gaffney Gaffney Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043283-001

28/03/2021

The Employee commenced employment with the employer on the 1st November 2019 working 20 hours per week and earing €200 gross.

The Employee is claiming that he was discriminated against by his employer, by reason of sexual Orientation, by not providing him with training and unlawfully discriminating against him by victimizing on the 29th June 2020, with the most recent date 27th July 2020.

The Employee states that his complaint relates to the Leisure Club Manager (JK) and Hotel Manager (MB). The stress caused to him by the allegations against him, at that meeting led him to be off sick from work with stress for eight months. Also, the lack of investigation into his defence and his complaints of bullying by members of the leisure centre staff against him and others has damaged his health.  The employee submits that he was subjected to this bullying and orchestrated complaint against him due to his sexual orientation, as he is a Gay Man.

Employee stated that when he commenced working for the employer during his induction the employee handbook was not given to him or emailed to him or instruction how to treat other staff employees. The Employee stated that other staff employees have not been instructed on how to treat their fellow employees and this has resulted in bullying and staff leaving. For eight months he has been trying to get matters investigated. It was stated that he has sent letters from his doctor and physiologist stating that he was willing to attend an investigation, but the employer has been still insisting that he return to work before any investigation can take place. There is no such rule in the employee’s handbook. He stated that he could not return to a hostile bullying environment when nothing has changed as it would be detrimental to mental health.

 The Employee further correspondence received by the WRC on the 30th March 2021 stated that he was aware of other employees who have been bullied in the leisure centre who haven’t come forward out of fear and embarrassment and he was standing up for them, himself and whoever else might fall victim to this illegal, ingrained intimidating behaviour.

The employee stated that the employer was inconsistent in their approach in dealing with his complaints against other members of staff.

He stated that he was invited to a meeting, and he asked was it disciplinary and should he have someone with him, he was advised (JK) that it was not. He stated that he had gone to the meeting completely not knowing what the issue was. While this meeting with the (GM) and (JK) he was given the complaints that other staff members had made against him. He stated that this completely took him by surprise, and it upset him.

He stated that he was totally blindsided by the allegations, and he was not provided with an opportunity to defend himself. Some of the things were true other issues outside of work that were raised, and the full information had not been provided. The Employee believed that it was an attack on him because of his sexual orientation.

He also submitted that two male colleagues were horse playing on the ground when they should be working, and he told them that was their behaviour making him aroused. The employee gave other examples that in his view were discriminatory and intimidation.

During cross examination by the employer’s solicitor (DG) the employee stated that he had signed the document for handbook and training. It was also raised the employee comments when two other workers were on the ground which the employee found to be arousing him the employee accepted that this was an inappropriate comment, however the employee stated that the employees should not have been in that position they should have been at their workstations.

The employee was asked why did he not ask them to stop?  (DG) stated ”So you're saying your involvement is based on you being gay. You're comments you’re now saying are sexual harassment.’ 

On questions from (DG) solicitor the employee accepted that some issues were resolved however Employer should have been keeping records of them for future reference

It was put to the employee by (DG) that some employees can make complaints informally and no written statement is taken from them, it is only when the complaint goes formal that written statements are taken.

The employee view was that records should be kept of all incidents.

The Employer stated that they had policies and procedures in place for dealing with employee grievances. They added that they were more than willing and wished to investigate the Employee complaints those that he had raised with them along with the complaints that he added over the time frame. However the Employer was unable to carry out this process due to the Employee being out on sick leave for 8 months. It was the Employer’s position that the nature of the Employee’s illness they could not proceed with any investigation until such time as the Employee was deemed fit to return to work. It was their view that any finding made by an investigation during the employee’s absence through illness could be challenged legally.

The Employer decided not to put forward any witnesses as they relied on the Employee’s own evidence and statements to support their position

Both parties made written and verbal submission.

I find that the substantial amount of documentation was submitted by both parties.

 Section23.— (1) If, at a place where A is employed (in this section referred to as “the workplace”), or otherwise in the course of A's employment, B sexually harasses A and either—

(a) A and B are both employed at that place or by the same employer,

(b) B is A's employer, or

(c) B is a client, customer or other business contact of A's employer and the circumstances of the harassment are such that A's employer ought reasonably to have taken steps to prevent it,

then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.

(2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled—

(a) B sexually harasses A, whether or not in the workplace or in the course of A's employment, and

(b) A is treated differently in the workplace or otherwise in the course of A's employment by reason of A's rejection or acceptance of the sexual harassment or it could reasonably be anticipated that A would be so treated,

then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.

(3) For the purposes of this Act—

(a) any act of physical intimacy by B towards A,

(b) any request by B for sexual favours from A, or

(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.

(4) According to the nature of the business of A's employer, the reference in subsection (1)(c) to a client, customer or other business contact includes a reference to any other person with whom A's employer might reasonably expect A to come into contact in the workplace or otherwise in the course of A's employment.

(5) If, as a result of any act or conduct of B, another person (“the Employer”) who is A's employer would, apart from this subsection, be regarded by virtue of subsection (1) as discriminating against A, it shall be a defence for Employer to prove that the Employer took such steps as are reasonably practicable—

(a) in a case where subsection (2) applies, to prevent A being treated differently in the workplace or otherwise in the course of A's employment and, if and so far as any such treatment has occurred, to reverse the effects of it, and

(b) in a case where subsection (1) applies (whether or not subsection (2) also applies) to prevent B from sexually harassing A (or any class of persons of whom A is one).

(6) In this section “employed”, in relation to an individual (whether A or B), includes—

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

(b) participation in any such course or facility as is referred to in paragraphs (a) to (c) of section 12 (1),

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

(7) Where subsection (6) applies in relation to A, subsection (1) shall have effect as if for the words “in relation to A's conditions of employment” there were substituted “contrary to section 11 or, as the case may be, section 12 ”.

     . BURDEN OF PROOF - EMPLOYMENT EQUALITY

Section 85A of the Act provides that "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 company to prove the contrary/". This requirement has been explored in a number of cases included the case of Melbury Developments Limited v Arturs Valpetc (EDA0917) wherein the Labour Court stated as follows;

"Section 85A of the Act provides for the allocation of the probative burden in cases within if am This requires that the Complainant must first establish facts from which discrimination  those facts are will vary from case to case.

I find that the employee believes that the employer is not consistent in applying the procedures especially when it comes to his complaints against other employees. I find that when the employee was called to the meeting he should have been given some indication what the meeting was about and he should have been given the opportunity of having someone present with him especially when you had both then GM and JK from the employers side present.

I find that employee was extremely annoyed that his case was not investigated while he was out on sick leave, however I find the Employer had  duty of care to the employee  not to have an investigation  while he [Employee]  was certified on sick leave. I believe the employer could have informed the Employee the procedure that would be followed when he (employee) was certified fit for work.

I find that employee submitted a lot of hearsay evidence on behalf of others in the absence of direct evidence or witnesses.

I find that the employee had a position in the leisure Centre and by its very nature an employee could be asked to do many other jobs in that area.

I find that the employee has failed to establish the burden of proof required in accordance with section 85A of the act to support his complaint

The Complaint is not well founded and falls.