Complainant

Respondent

Parties

Helen  Bambo

Cassidys Hotel Limited Cassidys Hotel

Representatives

Adrian Carey of Michael Kelleher 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-00049338-001

25/03/2022

The Complainant began working for the Respondent hotel as a food and beverage assistant on the 29th of June 2021.

She resigned on the 20th of February 2022 after having submitted a complaint that she had been  sexually harassed by a male colleague.

A hearing was held into the matter. The Complainant attended and gave evidence under affirmation.

The Respondent attended represented by Mr. Eamon Gibney their HR officer.

Mr. Damien Cassidy, who is the Respondent’s Deputy Manager, attended and gave evidence under oath. Mr. Edgar Terschanszki, who is a supervisor working for the Respondent, attended and gave evidence under affirmation. Mr Vishal Ramessur attended and gave evidence for the Respondent under affirmation.

The Complainant alleges that she had positive experience working for the Respondent until Mr Ramessur joined the Respondent in November 2021.

Following this she was subjected to a number of incidents of sexual harassment. She first made an informal complaint regarding these and later a formal one.

She provided oral evidence of these incidents at the hearing.

On the 9th of November 2021 the Complaint was finishing up her shift. Mr Ramessur approached her and asked how she was. He then offered her to get a drink. The Complainant replied that she didn’t think her boyfriend would like that. Mr Ramessur then made a comment to the effect that her boyfriend probably had a girlfriend so she could have a boyfriend.

The next day on the 10th of November 2021 Mr Rasmassur commented her appearance, saying she was cute. She felt there was an intention to go further.

Later in November the Complainant was in the staff smoking area sitting down at the bar stool during a break with other colleagues around. Mr Ramessur joined the group and deliberately positioned himself to stand over her with his crotch to her face.

Not long after the Complainant was returning from the smoking area. The Complainant was walking down the hall approaching from the opposite direction and spread his arms to hug her. She had to dodge him to avoid the hug.

Subsequently the Complainant was waiting for a food order and  Mr Ramessur asked her what her tattoo said. Her tattoo is on the back of arm and is quite small. She realised Mr Ramessur was sanding very close behind her. She got a bad fright.

The incidents were really upsetting and made her feel very small and very powerless.

After these incidents she approached her supervisor Mr Terschanszki twice. First on the 10th of November and then on the 18th of November. She told him exactly what happened and he responded by laughing. He then told her that he would take of care of it. At that time Mr Terschanszki did not refer her to any policy.

The Complainant expected formal action to be taken regarding Mr Ramessur however nothing happened. She was sick with covid in December 2021. In January 2022 she asked Mr Terschanszki about what had happened following her complaint. Mr Terschanszk replied querying whether there had been further incidences. He clearly considered the matter closed.

The Complainant was able to avoid Mr Ramessur due to shift differences and the division of bar staff and staff assigned to hotel guest meals. However there was a further incident in early 2022 when the Complainant taking in glasses from the bar staff. Normally the glasses would be left on the counter however Mr Ramessur made the point of handing the glasses to her individually and was deliberately lingering in the area.

On the 8th of February 2022 the Complainant was to attend a shift and realised she would be working with Mr Ramessur. She began to feel severe anxiety and had to call off the shift.

After this incident she was asked by the Food and Beverage Manager why she had called off sick. She told him why and he suggested she had to work when she was rostered.

On the 10th of February the Complainant put in a formal complaint.

On the 20th of February the Complainant resigned from her role.

The Complainant was cross examined by Mr Gibney.

In particular he questioned her about the alleged incidents and suggested that they did not constitute sexual harassment. The Complainant refuted this.

The Complainant confirmed that she had received the handbook when she took the job. She was never referred to it during the course of her interactions with management.

In late January early February she was offered a job at another company. She decided not to take it. She wanted to stay but then due to her treatment she decided to leave.  

The Respondent submitted detailed written submissions.

They point out, in the Complainant’s own written statement the alleged treatment appears to have ceased on the 18th of November after she had made her informal complaint. The other issues raised by the Complainant only came to the knowledge of the Respondent on the day of the WRC hearing a year later.

Following the informal issues raised by the Complainant the Mr Terschanszki met with Mr Ramessur who disputed the Complainant’s version of events.  Mr Terschanszki still saw to it that the parties did not have to work together. There was once incident in February where the rostering manager, who wasn’t aware of the history, rostered them together for one shift.

Mr Damien Cassidy gave evidence. He has HR oversight for the whole business. He was unaware of the Complainant’s concerns until mid- January. He was notified by both Mr Terschanszki and a different supervisor who had recently spoken to the Complainant. He then asked a different  manager to chat with the Complainant which he did. After the Complainant left he sought to follow up with her formal complaint. There was some delay on his part as he got covid. Likewise there were some issues with the Complainant following up by email. Ultimately the process went no futher.

Mr Edgar Terschanszki then gave evidence.

He is the supervisor who oversaw both the Complainant and Mr Ramessur. He knew the Complainant well and had worked with her previously. He was involved with recruiting her to the Respondent because he thought highly of her.  His management style is to be close to staff he has seen a lot of people treated like numbers in other places.

On the 10th of November the Complainant came to him and told him that Mr Ramessur had asked her out for a drink. He knew her boyfriend and said he’d go to Mr Ramessur and sort it out.

When he did Mr Ramessur denied having asked the Complainant out. Mr Terschanszki told him to be mindful of what he’s saying to other people and left it at that.

On the 18th of November the Complainant came to him for a second time. He moved working arraignments so Mr Ramessur would be working in a different area of the building.

In January the Complainant sought to speak to him again, she asked whether Mr Ramessur had gotten a written warning. Mr Terschanszki was clear that for such a thing to happen she would need to proceed by way of formal written complaint.  The Complainant suggested that she wanted to proceed that way.

Mr Terschanszki went to Mr Cassidy. Following this two other management figures were notified. One of whom reached out to the Complainant.  

Mr Terschanszki was cross examined.

When asked about the employment contract he was clear that staff are not allowed to sign it on the spot. They are required to read it.

He was then asked about his conversations with the Complainant in November. On the 10th the Complainant was annoyed.  She had told him that Mr Ramessur had wanted a drink at the end of their shift, she told him she had a boyfriend but he still pushed the idea.

On the 18th of November the Complainant was less specific. She didn’t provide clear details but had said that Mr Ramessur was being too friendly towards her.

He followed up by talking to Mr Ramessur and by rostering him so the Complainant didn’t have to deal with him.

Mr Vishal Ramessur gave evidence.

He first became aware of a potential issue regarding the Complainant on the 10th of November 2021. He was told she that had complained about him and that he had asked her out. He explained to Mr Terschanszki that he hadn’t. Mr Terschanszki then told him to be careful about what he says to people. Since that day he kept his distance from her.

He does remember the conversation that he had with the Complainant on the 9th of November. He wasn’t asking her out to go for a drink. A lot of people were going for drinks after work he asked whether she was going for a drink in that context, as in joining in with the other colleagues. There was nothing sexual about it.

He denied ever having standing over her in the smoking area or standing behind her and reading out her tattoo. He did not make a point of handing glasses to her nor did he try to hug her another time. He kept his distance from her.

Mr Ramessur was cross examined on these incidences. He was also asked about the Respondent’s sexual harassment policy which he never read.

He was asked about Mr Terschanszki speaking to him on 18th of November but was unclear in his response.

Harassment under Employment Equality Act

Section 14 A of the Employment Equality Acts Set out where an employer can found be liable for 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.

Respondent’s Response to Claims

The Complainant raised  alleged harrasment twice in November 2021. While the Complainant did not use the term sexual harassment it is fair that that could be reasonably inferred from what she described. That is she was asked out and when she declined that person had persisted. A week later she reported that same person continued to show unwanted attention towards her.

It is important to note that the Complainant had been furnished with the Respondent’s policies when she started in the role only 5 months earlier. There is a sexual harassment policy which provides for both an informal and formal complaints procedure. 

The Complainant’s supervisor, Mr Terschanszki, spoke to the alleged harasser who denied any wrongdoing. As he had no formal complaint he saw no reason to refer the matter to more senior management for investigation, so he decided to keep the parties separate. I found him to be a credible witness and I accept his evidence that he did not laugh at or dismiss the Complainant’s concerns.

In January 2022 the Complainant indicated that had not been a sufficient response. She seemed to have expected that Mr Ramessur should have been disciplined.

There is a clear dispute between the Complainant and Mr Ramessur as to what had happened. As such disciplining him without first conducting an independent investigation would not have been appropriate. For this reason, I think the actions of Mr Terschanszki in seeking to resolve things informally appear reasonable. He spoke with both parties and then decided to roster them in a way there would be apart.

I would note that an employee does not always need to make a formal complaint before an employer might be obliged to treat the matter formally. For instance certain allegations might be sufficiently serious that they might require investigation regardless as to whether there was a formal complaint. However in these circumstances I am satisfied that what the Complainant reported to Mr Terschanszki in November 2021 does not reach that threshold.

When in January 2022 it became clear that the Complainant wanted to pursue the matter formally management spoke to her and a couple of weeks later she submitted a formal complaint.

She resigned just 10 days after before any investigation could be conducted.

On review of the evidence and the processes undertaken at that time I am of the view that the Respondent took reasonably practible steps as required by Section 14A.2. Indeed my only real concern regarding the Respondent’s approach arises as a result of the comments of Mr Gibney representing his employer in the WRC a year later. In cross examination and submission he seemed to suggest that the behaviour the Complainant was allegedly subject to was not harassment. For the avoidance of doubt, sexual harassment is described in this act as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. What the Complainant alleges is just that. However, Mr Gibney’s position, over a year after these events,  do not appear to be relevant. The Respondent were clearly prepared to undertake an investigation once the Complainant submitted a formal complaint.

I find that the above complaint is not well founded.