Complainant

Respondent

Parties

Katarzyna (Kasia)  Czernik

RTÉ - Raidió Teilifís Éireann

Representatives

Barry Crushell Crushell & Co

Mairead McKenna SC instructed by  Arthur Cox LLP

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-00046857-001

27/10/2021

The complainant was employed as a Multi-Media Journalist by the respondent.  The complainant submitted a complaint to the Workplace Relations Commission on 27 October 2021.  It is stated on the complaint form that the complainant was discriminated against by the respondent by reason of gender and treated unlawfully by reason of sexual harassment.  The most recent date of discrimination was stated to be 21 June 2021. 

The respondent disputes the allegations in full.  The respondent asserts that it did not discriminate against the complainant.

The complainant commenced employment as a Multi-Media Journalist with the respondent on 11 March 2019 on a fixed-term contract.  She worked various shifts day or night in the newsroom, doing online and radio work.  In February 2021 the complainant became a staff member of the respondent working overnight shifts three days per week.  The complainant was writing and broadcasting news bulletins overnight.  Her salary was €31,804 per year.  When working overnight there was usually just one other employee on the same shift.

The complainant often worked overnight shifts with an employee, Mr X.  The sexual harassment complained of took place over three days, commencing on Friday 18 June 2021.  The complainant received text messages, WhatsApp messages and emails from Mr X between 18 and 21 June 2021.  The complainant considered the content of these messages to be very inappropriate and she asked him not to send her these types of messages.

Despite being asked not to send such inappropriate messages Mr X tried to contact the complainant by phone.  The complainant did not answer his calls and Mr X then sent further messages stating he had blocked her number.  Mr X then contacted another colleague and claimed the complainant had sent him very impolite messages.

The complainant did not respond to Mr X for two days.  She then received a text from Mr X asking what he had done and stated that he had treated her like a daughter.

The complainant’s wedding was due to take place at the end of June 2021.  The complainant became very stressed by these events and had trouble sleeping.  The complainant states that her wedding day was largely ruined by the trauma of the situation and as a result she cancelled her honeymoon.

The complainant contacted her manager almost immediately after the harassment started.  She spoke with her manager on the afternoon of 19 June 2021.  The complainant states that she believed her manager should be made aware of the harassment as soon as it happened.  The complainant states that she does not believe a case of sexual harassment is something that can be resolved.

The complainant states that an investigation was conducted by the respondent which found that sexual harassment had occurred.  The complainant stated that at the time she filed her complaint she did not know how Mr X was being dealt with.

The complainant made herself available before and after her wedding to help with the investigation.

The complainant states that she was too scared to return to work and was very stressed when she was certified unfit to work.  She went on sick leave.  The investigation was difficult for the complainant, particularly when she had to read a response from Mr X in which he tried to undermine her commitment to work.  The complainant states that her health has suffered immensely, physically, and mentally.  She attended nine therapy sessions with a psychotherapist.

The complainant states she wants justice after what happened to her.  The incident changed her and took away her confidence and trust in people.  The complainant believes the harassment effectively ruined her professional career as a journalist with the respondent.  She had worked hard to establish herself as a journalist.

Legal Submission

The complainant claims that she was subjected to sexual harassment in line with the provisions of Section 14A (7) (a) of the Employment Equality Acts.  The decision of the Labour Court in Nailzone Ltd v A Worker EDA 1023 was cited as providing a description of the essential characteristics of harassment within the statutory meaning as being: conduct that is (a) unwanted and (b) has either the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  The Court also stated, “whether or not the conduct would have produced the same result in a person of greater fortitude than the complainant, it constitutes harassment for the purpose of the Acts.”

Section 15 of the Employment Equality Act provides that the employer is vicariously liable for the actions of his employees, whether he was aware or not.

Section 85A requires the complainant to establish, in the first instance, facts from which discrimination may be inferred.

Redress

The complainant seeks €300,000.  Of this €150,000 is for being forced to end her professional career with the respondent.  The figure represented five years’ salary that being the length of time the complainant had invested in developing a career with the respondent.  The complainant did a month-long internship in 2017, followed by two years waiting for a position after a successful interview, followed by two and a half years working for the respondent.  The complainant resigned in March 2022.

The other €150,000 is for the mental, emotional, and physical impact the harassment had on the complainant. 

The respondent disputes the complainant’s allegations in full.  The respondent did not discriminate against the complainant.

The complainant was employed as a Multi-Media Journalist with the respondent.  She first worked with the respondent in 2017 and was paid a contributor fee for thirteen dates in that year.  She commenced a three-year fixed-term contract on 11 March 2019.  On 14 January 2021 the complainant was offered a permanent part-time contract and she commenced working a three-day week.  The complainant resigned from her position on 03 March 2022 and her resignation was made effective from 04 April 2022.

Background

19 June 2021 – The complainant emailed her manager, Mr Paul Ferris, asking to speak with him about an urgent personal matter.  In the email the complainant stated that she would not be able to work with an employee, Mr X, for the foreseeable future.

Mr Ferris telephoned the complainant less than one hour after receiving the email.  The complainant informed Mr Ferris that she had been sent inappropriate emails and text messages by Mr X.  The complainant requested that this matter be dealt with locally as she was not upset or traumatised by the messages but was “furious” that a man in his 60s could think he could send messages like that to a younger woman.  Mr Ferris explained that this was a very serious issue and despite the complainant’s request to deal with it in an informal manner, he would have to consider the duty of care owed to her and other staff members in determining what approach to take.

Mr Ferris informed the complainant that she would not need to work with Mr X, and he offered to contact Mr X to ask him to cease contact with the complainant.  The complainant did not think that was necessary.  Mr Ferris informed the complainant that if she received further messages from Mr X, she could contact him day or night and he would intervene.

21 June 2021 – The complainant emailed Mr Ferris to make a formal complaint against Mr X.  She attached copies of the emails and messages she had received from Mr X. 

Mr Ferris then sent this matter to the respondent’s Director of HR.

22 June 2021 – Mr Ferris emailed the complainant to draw her attention to the supports available under the Employee Assistance Programme (EAP).

24 June 2021 – The complainant replied that she may avail of this EAP support as the whole situation had been overwhelming and stressful.  She would contact EAP after her wedding.  The complainant also expressed her concern about returning to work at night feeling uncomfortable, concerned for her safety and wellbeing.  She was waiting for a call from HR to find out what sort of solution/process would be put in place to deal with what had occurred.

25 June 2021 – The Head of HR, News & Current Affairs, Ms Tanya McNulty, contacted the complainant to inform her that a board had been set up to investigate her complaint.  Mr X would be out of the workplace for the duration of the investigation.  Mr X had been instructed not to contact the complainant.  If Mr X did attempt to contact her, she was to get in contact with Mr Ferris immediately, regardless of the time of day.

The complainant was reminded of the EAP support available to her.  The complainant expressed her concern for her safety when returning to work and was assured such safety concerns could be discussed in advance of her return to work.

30 June 2021 – The complainant went on certified sick leave citing a stress related illness.

01 July 2021 – The complainant informed Mr Ferris that she had contacted EAP and her GP.

Investigation

The Director of HR appointed a practising barrister to assume the role of independent investigative chair in respect of the allegations raised by the complainant.  The barrister was provided with a copy of the complaint and the policy.  She advised that there was a basis for an Investigative Board to be established for the purpose of investigating the complaint.

An Investigative Board was established compromised of:

o   An independent chair – a practising barrister who specialises in employment law

o   A Multi-Media Journalist in News and Current Affairs

o   The Head of Vision, Sound and Programme Support

A HR generalist was appointed as secretary to the Board.

Terms of Reference were drafted and specifically set out the following:

“The process will adhere to the principles set in respect of the Formal Investigative Process under section 4.3 of the (respondent’s) Dignity and Respect at Work Policy.”

The Investigative Board commenced work on 30 June 2021 when Mr X was contacted.  The Board worked through July 2021.  Due to Covid-19 restrictions meetings with relevant people were held remotely.  The Board circulated a draft report to both parties on 06 August 2021.  The parties were given time to make any submissions or comments to this the draft report. 

The complainant responded on 09 August 2021 stating she had read the report and had nothing else to add.  The complainant thanked the Board.

The Investigation Report was issued on 19 August 2021.  The conclusions and findings included: -

o   The Board was satisfied that Mr X’s behaviour over the period 18 to 21 June 2021 amounted to inappropriate and/or unacceptable conduct.

o   The Board was satisfied that Mr X’s actions in sending emails, WhatsApp messages, text messages and attempting to call the complainant’s mobile phone amounted to verbal/written conduct that was unwanted by the complainant. 

o   The Board accepted that the effect of Mr X’s conduct was to violate the complainant’s dignity and create an intimidating, degrading, humiliating and offensive environment. 

o   The Board was satisfied the that the overall tone of the communications was sexual in nature.

o   The Board found that Mr X’s action in sending the various communications between 18 and 21 June 2021 met the definition of sexual harassment as per the respondent’s Dignity and Respect at Work Policy.

o   The Board noted that Mr X advised he was inebriated during the course of the communications with the complainant.  The Board did not consider that his inebriation excused or justified his behaviour.  His behaviour met the definition of sexual harassment as per the relevant policy of the respondent.

o   The Board upheld the complainant’s complaint of sexual harassment on the part of Mr X.

o   The Board recommended that consideration by given to invoking the Disciplinary Policy.

Disciplinary

The respondent accepted the recommendation and enacted the Disciplinary Procedure.  The Disciplinary Board recommended that Mr X be dismissed.  The respondent wrote to Mr X and informed him his last day of employment would be 16 September 2021.  Mr X submitted an appeal on 30 September 2021.  Following an appeals process the decision to dismiss Mr X was upheld on 11 November 2021.

Communications with the Complainant

On 26 August 2021 the Chair of the Investigative Board shared the Investigation Report with the complainant.  On 07 September 2021 Ms McNulty contacted the complainant by email to acknowledge that the complainant had received the Investigation Report.  The complainant was informed that a meeting would be arranged with her when she felt ready to return to work.

The complainant sent an email to Ms McNulty on 10 September 2021 asking when she might receive a response from the respondent regarding the report and its consequences.

Attempts were made between 10 and 27 September to agree a suitable date to meet.  The meeting, on 14 October 2021, was attended by the complainant, accompanied by her solicitor as an observer, Ms McNulty, and Mr Ferris.  The complainant was informed that the respondent took her complaint very seriously and that it was being addressed under the Disciplinary Procedure.  Whilst the respondent had to maintain confidentiality about the disciplinary procedure the complainant was assured that Mr X would not be working with her again.

It was noted that a key priority for the respondent throughout the process was the duty of care owed to the complainant.  The complainant was availing herself of supports under the EAP at that time.

A further meeting took place on 15 December 2021.  Again, the meeting was between the complainant, her solicitor (as an observer), Ms McNulty and Mr Ferris.  The complainant was informed that the Disciplinary Procedure had concluded.  The outcome of that process was confidential.  However, Ms McNulty confirmed that Mr X was no longer an employee of the respondent.  It was explained that the respondent was duty bound not to reveal the outcome of a disciplinary process.  The complainant’s solicitor noted he could explain to the complainant why the respondent must adhere to such procedures regarding confidentiality.

The following day, 16 December 2021, Ms McNulty emailed the complainant to thank her for meeting the previous day.  It was noted that the sick leave policy was discussed, and that the complainant was to take some time to reflect on what had been discussed.  The complainant was to forward any questions she had to the respondent ahead of the next meeting, which was likely to take place in January 2022.

Ms McNulty sent a follow-up email to the complainant on 17 January 20222 to check on her and ask if she had any questions arising from the 15 December meeting.  The complainant replied on 21 January 2022 stating she was feeling unwell and asking whether she could get back in touch when she was feeling better. 

The complainant next contacted the respondent on 03 March 20222.  She submitted a letter of resignation on that date.  Ms McNulty replied by email the following day expressing her sorrow that the complainant had taken the decision to resign and asking if they could meet the following week.  In the meantime, processing the resignation was delayed ensuring the complainant had time to reflect on this step.  It was noted that no follow up questions had been received from the complainant regarding the meeting of 15 December 2021.  A further email was sent to the complainant on 10 March 2022. 

On 22 March 2022 the complainant attended a meeting with Ms McNulty and Mr Ferris.  The purpose of the meeting was to make sure the complainant was happy with her decision to resign.  The complainant informed the meeting that she had been diagnosed with depression and she felt unable to return to work.  The complainant expressed her fear that Mr X lived near to the respondent’s premises and the nature of overnight work.  The complainant wished to leave Dublin and return home to Poland. The complainant expressed her thanks for the opportunity given to her by the respondent and in particular by Mr Ferris.  The complainant was informed that it had been the intention that she would return to work and that the door was always open for her to apply for future roles.  The complainant’s resignation was accepted effective 04 April 2022.

Complainant’s Submission / Statement

The respondent noted its concern at aspects of the complainant’s written submissions that appeared to be false.  The issues of concern relate to where the complainant resides, her work/employment status and her awareness of the outcome of the investigation process.  These issues were raised with the complainant in cross examination.

Defence

The respondent relies on the defence available to it under section 14 of the Act.

The respondent submits that the complainant has not specified how the respondent discriminated against her and therefore it is unclear what is the precise nature of the alleged discrimination. 

The respondent submits it took reasonably practicable steps to prevent Mr X sexually harassing the complainant.  The respondent had a comprehensive Dignity and Respect at Work Policy in place which was regularly communicated to staff. 

The respondent fully, thoroughly, and immediately investigated the complainant’s claims of sexual harassment.  The allegations were independently investigated.  The Investigative Board upheld the complaints and ultimately Mr X was dismissed.

The respondent submits the investigation was carried out as expeditiously as possible whilst ensuring the rules of natural justice and fair procedures were at all times observed.

At the time the complaint form was submitted to the Workplace Relations Commission the complainant had not been informed of Mr X’s dismissal because this was subject to appeal.  The respondent could not inform the complainant of the disciplinary and appeal processes as these were confidential.  The respondent did inform the complainant that Mr X was no longer an employee at the meeting of 15 December 2021.  At that meeting the complainant’s solicitor stated that he would explain to the complainant why the respondent had to adhere to procedures.

The respondent submits that it supported the complainant throughout the entire process.  The complainant denies that the complainant was “forced to end” her professional career with the respondent.

The complainant was a valued member of the respondent’s multimedia team.  The respondent did not want the complainant to resign.  Her resignation was not processed until over a month after it was submitted.  This was to ensure the complainant had the ability to reflect on her decision before it was finalised.  The complainant was informed that the door was always open for her to apply for roles if she so wished in the future.

The respondent submits that the complainant’s statement in her submissions – “I do not believe a case of sexual harassment is something that can be resolved” - suggests that the complainant would never be prepared to engage meaningfully with the respondent regarding her return to work.

The respondent submits that the complainant cannot establish a prima facie case of discrimination in general, and in particular in relation to her conditions of employment or the investigation of her complaints.

The respondent submits it took reasonably practicable steps to prevent Mr X’s behaviour as –

a)       It had a comprehensive Dignity and Respect at Work Policy in place which was effectively communicated to all employees

b)      A thorough and immediate investigation of the complainant’s complaint was carried out by an investigation board that was chaired by an independent investigator

c)       The complainant was referred to EAP and the complainant availed herself of that service

d)      The respondent made plans for the complainant’s return to work which would not require her to work overnight

Legal Submission

Section 85A of the Acts deal with the burden of proof.  The effect of this section is to shift the burden of proof to the respondent, but only once the complainant has proved a prima facie case that the difference in treatment alleged is due to discrimination on one of the discriminatory grounds.  The respondent cited the Labour Court decision in Southern Health Board v Mitchell [2001] E.L.R. 201 where the Court considered the evidential burden the complainant must discharge before a prima facie case can be made out.  The decision in Minaguchi v Wineport Lakeshore Restaurant DEC-E/2002/20 was cited as it provided a definition of primary facts to be established. 

The respondent also cited the decisions in Melbury Developments v Val Peters EDA 0917, Graham Anthony & Co Limited v Margetts [2003] EDA038 and Nikki Spilanne v Jazz Pharmaceuticals Ireland Ltd ADJ-00031356.

Section 14A (2) of the Acts provides an employer with a defence to a claim of sexual harassment where the employer can show that it took such steps as were reasonably practicable to prevent the employee from doing the act which is found to have constituted sexual harassment.  What constitutes ‘reasonably practical steps’ is not defined but guidance may be found in The Code of Practice on Sexual Harassment and Harassment at Work and case law.  The respondent cited the decisions in the following cases A Hotel v A Worker EDA0915, Waterford Institute of Technology v Walsh EDA 1931, Ms S v A Named Organisation DEC-E2006-025, Cpl Solutions Limited t/a Flexsourcce Recruitment v Mr Victor Kings Oluebube EDA 2134 and The Agricultural Trust v Ms Lynne Brien EDA22115.  The respondent submitted that the above decisions point to an employer having a defence to a claim of sexual harassment where they have in place a policy which has been effectively communicated to employees, together with appropriate training, fair and impartial investigation procedures, an appeals process and access to relevant supports for the employee.

Conclusion

The respondent submits that the complainant was not subject to any adverse treatment or discrimination because of her raising a complaint of sexual harassment in the workplace.  The complainant’s complaint was investigated, and the complaint was upheld.  Following the investigation, a disciplinary process was commenced which ultimately led to the dismissal of Mr X.  The respondent submits that it at all times applied fair procedures to the investigation.

The respondent submits the complainant did not suffer an adverse impact to her career or standing in the organisation.

The complaint’s allegations in relation to discrimination or less favourable treatment on the grounds of gender are unsubstantiated and not well founded.  The respondent took reasonably practical steps to prevent Mr X’s behaviour.

The respondent submits the claim should be rejected.

CA-00046857-001

Complaint submitted under section 77 of the Employment Equality Act,1998

The complainant was employed as a Multi-Media Journalist with the respondent.  In June 2021 she was a permanent employee working part-time for three nights per week.  When working overnight in the news and current affairs section there was usually just one other journalist working the same shift.  On many shifts the other employee was a Mr X.  The complainant submitted a formal complaint to the respondent on 21 June 2021 under the Dignity and Respect at Work Policy.  The complaint was about inappropriate communications received from Mr X between 18 and 21 June 2021.  The complainant stated in her complainant that she felt she was being harassed by Mr X.

Legislation / Sexual Harassment

Sexual Harassment is prohibited in Ireland by the terms of the Employment Equality Act –

Section 14A provides:

(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) … (6)

(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.

Ms Czernik’s Oral Evidence

The complainant described the communications she had received from Mr X by text, WhatsApp messages, email, and phone calls between 18 and 21 June 2021.  She reported the inappropriate communications to her manager Mr Ferris by email.  Mr Ferris reacted very quickly by phoning her within an hour of receiving the complainant’s email. 

The complainant stated that it was embarrassing, and she knew it was serious but she at first tried to trivialise it because the communications were embarrassing.  However, the complainant’s feelings changed as things developed. 

The complainant made a formal complaint by email on 21 June 2021.  She was contacted by the Head of HR, News & Current Affairs, Ms McNulty and informed an Investigative Board would be set up to investigate the complainant.  She was also informed that she would not have to work with Mr X. 

The incident took place two weeks before her wedding.  The complainant was due to be off work for some days before her wedding.  This incident made her very stressed and anxious.  The complainant went on sick leave on 30 June and over time she was diagnosed with depression.  The complainant was referred to the respondent’s occupational health doctor at one stage and the conclusion was the same.

The complainant described participating in the investigation.  She remembered that the investigation meeting was difficult and emotional.  The meeting was held remotely due to Covid restrictions.  The complainant did not have complaints about the Investigative Board or the scope of the investigation.  However, she found the process stressful.

The complainant stated that the information given to her by the respondent did not meet her expectations.  Knowing that she would not have to work with Mr X is not the same as not having to meet him.  She stated she was not provided with the answers, it was only through recent press reports that she had found out he was dismissed.

The complainant recalled meeting with the respondent and the fact that there was some resistance to her being accompanied by her solicitor.  However, eventually her solicitor was allowed to attend with her as an observer.  The meeting was on 14 October.  She had been vocal about her feelings and didn’t think she could work not knowing what was going to happen to Mr X.  This was very difficult.

The complainant attended a meeting on 15 December 2021, but she stated she did not have a clear recollection.  She remembered she felt pressured by the respondent about sick leave.  She was told there would be an external medical evaluation required.  They were to meet again in January 2022.

The complainant had expressed her concerns about her safety, particularly when working overnight and with only one security guard in the building.  The respondent had said a safe environment would be provided but to her she was not given a solution so that she could feel safe.

The complainant stated that she could not recall if she was informed Mr X was dismissed.  She stated she was never really aware if Mr X was suspended or dismissed.

The complainant stated that she became deeply depressed.  This had been a very lengthy process that ended in depression.  She felt she had to focus on her future for her health.  She was never given an answer as to how she could safely return to work.  She had concerns about working overnight.  The complainant stated that she had resigned because of a combination of factors.  She felt she would not get better if she went back to the respondent.  Her contract was for overnight work and Mr X lived close by work.  She stated she felt that resigning was the only way.  The investigation had a strong effect on her mental health.  She had been expected to be available at short notice. 

In reply to questions put to her in cross examination the complainant confirmed that her manager Mr Ferris had taken the complaint seriously.  She acknowledged that she had, at first, intended the complaint should be handled informally but she didn’t know the way to go.  The complainant acknowledged that Mr Ferris told her it was a serious matter.

The complainant acknowledged she had availed herself of therapy sessions through the EAP.  She had attended nine sessions, but she could not say if she had been offered more.  The complainant acknowledged that Mr Ferris had told her she did not need to work on Saturday 19 or Sunday 20 June 2021.  However, she knew they would be short staffed, and that Mr X was not due to work on those days.  She went to work as she was always conscious of doing her work well.

The complainant confirmed that when she was on sick leave, she had been paid in full for the first six months and then reduced to half pay, as provided for in the respondent’s sick leave scheme.  The complainant agreed that from June to October 2021 there had been no pressure to return to work.  Thereafter she was very ill and depressed and didn’t know when she could return.  The December meeting was pressure when sick leave was raised.  The complainant stated that unlike a physical injury like breaking a leg it is very different with emotional trauma.  The complainant confirmed that she was on certified sick leave up to the date of her resignation.

The complainant accepted that the allegations made by her against Mr X were serious and had to be investigated.  She acknowledged that the final result was that Mr X had his employment terminated.  The complainant accepted that she had been provided with a copy of the report and asked to comment if she wished.  She did not comment on the report. 

The complainant accepted that the Head of HR, News & Current Affairs, Ms McNulty had contacted her and did not neglect to keep in contact.  However, the respondent had not provided her with the information or comfort she needed, particularly about her safety.  The complainant did not dispute that the note of the meeting of 14 October 2021 was accurate.  She acknowledged it was clear she would not have to work with Mr X again.  The complainant also acknowledged that she was offered a medical referral to avail herself of further therapy sessions if she needed such sessions.

The complainant replied that no specific assurances were given about a safe place of work.  She stated that the respondents would try to make it safe but how could she do an overnight shift when there are few people in the building?  She accepted that there is campus security and CCTV, but she had said a gate is not enough security if someone really wants to enter.

The complainant stated she wanted her solicitor with her at the meeting because of her health and she may have needed advice.  She also had a personal injury claim which was now dropped.

The complainant confirmed that she had received a contract of employment and handbook policies and that she was aware of the respondent’s policies.

The complainant stated that she had made the personal statement in 2021 when her complaint was submitted to the Workplace Relations Commission.  Some of the details were not accurate in 2022.  The complainant was no longer living in Dublin.  She confirmed that she had been asked to update the statement.  There may have been an error about her employment/self-employment status.

The complainant could not recall the details of the meeting on 15 December 2021, but she accepted she was told Mr X no longer worked for the respondent.

Head of HR, News & Current Affairs, Ms McNulty’s Oral Evidence

Ms McNulty stated that the respondent’s Dignity and Respect at Work policy was issued in 2019 to staff.  The policy was updated in 2021 and was communicated to staff by email.  The unions had been consulted about the policy.  The policy is accessible to staff on an internal hub.

The complainant’s line manager Mr Ferris had contacted her when he received the first email on 19 June 2021.  They discussed the content of the email and concluded the matter was serious.  The Director of HR was informed.  Plans were put in place to establish an investigation.  Mr X was suspended and instructed not to contact the complainant.  His access to the premises was removed.

The Investigative Board upheld the complaint.  The respondent did not dispute anything in the report.  After the report was completed, efforts were made to arrange a meeting with the complainant.  She had plans for a trip in September, so she suggested a date after 27 September 2021.  The meeting was arranged for 14 October.  The complainant requested that she be accompanied by her solicitor.  Initially the respondent declined as it was an internal meeting, but it was later agreed.  The complainant’s solicitor was to attend as a support for the complainant.  The minutes of the meeting were taken by Mr Ferris and Ms McNulty agreed they were accurate.

Ms McNulty did not receive any request for specific assurances from the complainant.

The next meeting took place on 15 December 2021 and was instigated by Mx McNulty.  This was to provide further information to the complainant.  When they met on 14 October 2021 the disciplinary proceedings had not concluded.  At the meeting on 15 December 2021 the respondent informed the complainant that Mr X was no longer employed by the respondent.  What the complainant would need to return to work was discussed and the complainant’s solicitor was to revert with any questions in January 2022.  On 17 January 2022 the Head of HR made contact by email to check if the complainant had any questions arising from the meeting of 15 December 2021.  The complainant replied on 21 January 2022 stating she was feeling unwell and asked if she could get back in touch when she was feeling better.  Ms McNulty confirmed it would be in order to reply when she was feeling better. 

The next communication Ms McNulty received from the complainant was her letter of resignation.  It was received on 03 March 2022.  Ms McNulty stated that she and Mr Ferris were surprised and disappointed at the complainant’s resignation.  She stated that the complainant was a good colleague and good at her work.  The complainant was given an opportunity to discuss her decision and make sure she was happy with her decision.  A meeting took place on 22 March 2022.  The complainant explained the reasons for her decision.

Ms McNulty explained that the security arrangements at the premises included CCTV, swipe access to the building and again to the newsroom.  In addition, there is a security control room and security staff do rounds of the building during the night.

In responding to questions from the complainant’s solicitor Ms McNulty stated that Mr X had been dismissed but he had appealed that decision.  At the meeting on 14 October 2021 the appeal process had not concluded so it was not possible to know the final outcome.  The complainant was given a clear assurance that she would not be working with Mr X again.  Ms McNulty understood that the complainant had concerns about working at night, but she was assured she would not be working with Mr X.  She had expected to receive questions following the meeting of 15 December 2021 about the complainant’s return to work and work arrangements, but no issues were raised.

Responding to questions from the Adjudicator Ms McNulty confirmed that updates of HR policies were sent to employees by email.  Mr X had been an employee and would have been sent the update of the Respect and Dignity at Work policy.  Training was provided for managers in how to deal with complaints submitted under the Respect and Dignity at Work policy.  Following the meeting of 15 December 2021, it had been expected that the complainant would have queries about return-to-work arrangement and options were available.  The complainant was a valued colleague, and it was expected that she would be returning to work with the respondent when she was medically fit to return.  In the event no queries or questions were raised and there was no request to change from night shift to other arrangement.  The respondent was conscious that the complainant was on sick leave and allowed her time to submit any queries she may have had.  The letter of resignation was not expected and so it was not implemented until after the meeting of 22 March 2022.

Burden of Proof

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

The first requirement of a complainant is to establish facts from which it may be presumed on the balance of probabilities that an act of discrimination has occurred.

The complainant submitted a complaint to the respondent under the terms of the Dignity and Respect at Work policy.  The Investigation Board found, inter alia, as follows:

“The Investigation Board find that Mr X’s actions in sending emails, WhatsApp messages, text messages and attempting to call Ms Czernik over the period from 18th June 2021 to 21st June 2021 meets the definition of sexual harassment as per the RTE Dignity and Respect at Work policy”

I am satisfied that the complainant was sexually harassed by Mr X over the period 18 June 2021 to 21 June 2021.  This complaint however is against the respondent, her employer, and not against Mr X.  The complainant alleges that she was discriminated against by her employer on the grounds of gender and sexual harassment. 

Gender

The Employment Equality Act section 6 provides:

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,

(ii) existed but no longer exists,

 (iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) …

(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”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

 (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

 (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

 (i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)

The complainant did not present evidence to support a complaint that she was treated less favourably by the respondent to the way a man was or would have been treated in similar circumstances.  I find the complainant has not established facts from which it may be presumed she was treated less favourably than another colleague who was a man.  Therefore, I find the complainant was not discriminated against by the respondent on the gender ground and therefore the burden of proof does not shift to the respondent.

Sexual Harassment

The Employment Equality Act and the Recast Equal Treatment Directive include harassment in the definition of what constitutes unlawful discrimination.  Section 14A of the Act provides:

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) … (6)

(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.

A complaint of sexual harassment requires that the conduct complained about must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.  The test is therefore a subjective test and there is no need for a comparator.  The Labour Court approved the application of a subjective test in its decision in Nail Zone Ltd v A Worker EDA 1023 in stating:

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

In addition, a complaint of sexual harassment must be based on conduct that is of “a sexual nature”.

The Investigattive Board in its report stated:

“The Investigative Board are wholly satisfied that Mr X’s actions and behaviour in sending emails, WhatsApp messages, text messages and attempting to call Ms Czernik’s mobile phone during the period 18th June 2021 to 21st June 2021 amount to verbal/written conduct that was unwanted by Ms Czernik.  It is accepted that the effect of this conduct was to violate Ms Czernik’s dignity and to create an intimidating, degrading, humiliating and offensive environment for Ms Czernik.”

“The Investigative Board has given significant consideration to the question of whether or not Mr X’s conduct can be said to be conduct of a sexual nature and has concluded that the conduct is of a sexual nature.”

and

“The Investigative Board find that Mr X’s actions in sending emails. WhatsApp messages, text messages and attempting to call Ms Czernik over the period 18th June 2021 to 21st June 2021 meets the definition of sexual harassment as per the RTE Dignity and Respect at Work policy.”

The respondent accepted the findings of the Investigative Board. 

The complainant in her evidence stated that she was embarrassed by the actions of Mr X and that he took away her confidence.  This resulted in the complainant becoming ill from stress and she was later diagnosed with depression.  Based on the complainant’s testimony and the findings of the Investigative Board I am satisfied that the complainant has established that she was subjected to sexual harassment by Mr X and facts from which it may be presumed that there has been discrimination in relation to her.  It is therefore for the respondent to prove the contrary.

Section 14A (2) of the Act provides as follows:

(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.

This section of the Act thus may provide an employer with a defence to a claim of sexual harassment if the employer can demonstrate that it took such steps as were reasonably practicable to prevent an employee from doing the act or acts that were found to have constituted sexual harassment.  The Act does not define “steps as are reasonably practicable”.  However, the Code of Practice on Sexual Harassment and Harassment at Work published by the Irish Human Rights and Equality Commission states that for an employer to rely on the section 14A (2) defence “employers must have comprehensive, accessible, effective policies that focus on prevention, best practice and remedial action.  They must also have accessible complaints procedures”

The respondent has in place a Dignity and Respect at Work Policy which is stated to be a policy on the Prevention of Workplace Bullying, Harassment, Sexual Harassment and Racism.  A copy of the policy document was provided, and it provides a definition of sexual harassment consistent with the legislation, describes the roles and responsibilities under the policy of staff and management, includes a panel of designated contact persons, a complaints procedure (informal and formal) and details an investigation and appeal process.  The policy also provides for training for staff, contact persons and investigative board members.

Ms McNulty in her evidence stated that the policy was communicated to employees by email and updates of the policy were also provided by email.  The complainant in her evidence confirmed that she had received a copy of the policy.  I am satisfied that the respondent had taken steps to have in place a policy aimed at the prevention of sexual harassment in the workplace.

It was clear from the statements made by counsel for the respondent and Ms McNulty that the complainant was a valued employee and that the actions of Mr X were totally unacceptable.  Based on the complainant’s evidence and Ms McNulty’s evidence it is clear that when the complaint was made the respondent took swift action.  In the first place Mr Ferris contacted the complainant within an hour of receiving the first email from the complainant.  The complainant was told that she did not have to work her night shifts that weekend.  The complainant was a dedicated employee and knowing that Mr X was not scheduled to work nights that weekend she did in fact report for work.  The complainant, in her evidence, agreed that initially she wanted the complaint dealt with informally but on reflection and discussing the matter with Mr Ferris and her own family realised the seriousness of the issue.  Once the complainant made her formal complaint on 21 June 2021 the respondent acted quickly to establish an investigative board.  The complainant was informed on 25 June 2021 that an investigative board had been set up and that Mr X would be out of the workplace for the duration of the investigation.

The Investigative Board acted swiftly and issued its report on 19 August 2021.  I accept that the complainant found the investigation process to be challenging and stressful and this was noted by the Board in its report.  The Board also noted that the initial steps involved in processes of this kind (i.e., the making of a complaint and the preparation of a statement about the issues complained of) will always be somewhat difficult for a complainant.  In the complainant’s situation the process was more challenging as she was preparing for her wedding at the time the issues complained of took place and the investigation process commenced.

The complainant acknowledged that the respondent provided her with counselling through its Employee Assistance Programme (EAP).  I note that Ms McNulty indicated that further sessions could also have been provided on the recommendation of the Occupational Health doctor.

The complainant acknowledged that she was informed on 14 October 2021 that Mr X would not be working with her again.  There was at that time a Disciplinary Procedure ongoing arising from the recommendation of the Investigative Board.

This complaint concerns the actions of the respondent between 19 June 2021, the date of the first informal complaint and 27 October 2021, the date the complaint was received by the Workplace Relations Commission.  Based on the submissions and evidence presented I am satisfied that the respondent took such steps as are reasonably practicable to prevent Mr X from sexually harassing the complainant and to prevent her being treated differently in the workplace.  The steps include:

a)       having in place a comprehensive policy which had been communicated to all employees by email, (the policy is accessible to staff on an internal hub)

b)      provided training to management so enabling a swift response to the initial informal complaint,

c)       acting to support the complainant by not requiring her to work her night shifts,

d)      providing support through the Employee Assistance Programme

e)      acting to appoint an Investigative Board within four days of the formal complaint

f)        implementing the recommendation of the Investigative Board

g)       supporting the complainant through its sick leave policy that provided her paid sick leave from 30 June 2021.

I find that while the complainant was sexually harassed by Mr X, she was not discriminated against by the respondent because of the steps taken by the respondent to prevent such harassment. 

I find that the complainant was not subject to any adverse treatment or discrimination arising from her raising her complainant of sexual harassment. 

The respondent acted swiftly to investigate the complaint and accepted the findings and recommendations of the Investigative Board.  The disciplinary procedure recommended by the Investigative Board ultimately resulted in the dismissal of Mr X on the grounds of gross misconduct.

I note that the complainant was dissatisfied that she was not informed on 14 October 2021 that Mr X had been dismissed, even though she was assured that she would not be working with him again.  I accept that the respondent was unable to provide more information to the complainant on that date due to the disciplinary and appeal process being confidential. 

Ms McNulty emailed the complainant on 12 November 2021 to advise that the appeal process was concluded and requested a meeting with the complainant.  As the complainant was still on sick leave Ms McNulty asked the complainant for a suitable date to meet at her convenience.  That meeting took place on 15 December 2021.  The complainant was informed that Mr X was no longer an employee.  Ms McNulty in her evidence stated that she expected further contact following that meeting to discuss the complainant’s return to work.  No contact was received from the complainant or her solicitor and so Ms McNulty sent a follow-up email to the complainant on 17 January 2022 requesting any questions the complainant might have.  The complainant replied that she was unwell and would be in contact when feeling better.  The next communication was the complainant’s resignation received on 03 March 2022.

The events after 27 October 2021 are outside the scope of this complainant.  However, I note the respondent’s efforts to continue to support the complainant through its sick leave policy and by not implementing the complainant’s resignation until after meeting with the complainant on 22 March 2022 to discuss the reasons for her decision to resign.  Ms McNulty stated that Ms Czernik was a valued employee that was expected to return to work and that she and Mr Ferris expected to engage with her about her return.  However, no questions were received from Ms Czernik following the meeting of 15 December 2021.  The meeting of 22 March 2022 was to allow Ms Czernik time to reflect on her decision to resign and the resignation was not implemented until 04 April 2022.  Ms Czernik was not forced to resign from her employment with the respondent.  Ms McNulty stated that the door was always open to Ms Czernik to apply for roles with the respondent in the future if she so wished.

As I have found that the respondent did not discriminate against the complainant on the ground of gender or sexual harassment and that the complainant was not subject to adverse treatment arising from making a complaint, the issue of compensation does not arise. 

I note the complainant’s submission included a claim for compensation of €300,000.  For the sake of clarity, the Employment Equality Act provides the following in respect of redress at section 82 (4):

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000, or

b) in any other case, €13,000.

I find the complainant was not discriminated against by the respondent and therefore the issue of redress does not arise in this case.

CA-00046857

Complaint submitted under section 77 of the Employment Equality Act, 1998.

Complaint of discrimination by reason of gender

The complainant did not present evidence to support a complaint that she was treated less favourably by the respondent to the way a man was or would have been treated in similar circumstances.  I find the complainant has not established facts from which it may be presumed she was treated less favourably than another colleague who was a man.  I decide the complainant was not discriminated against by the respondent on the gender ground.

Complaint of unlawful treatment by the respondent by discriminating by sexual harassment

I find that while the complainant was sexually harassed by Mr X she was not discriminated against by the respondent.  Based on the submissions and evidence presented I am satisfied that the respondent took such steps as are reasonably practicable to prevent Mr X from sexually harassing the complainant and to prevent her being treated differently in the workplace.  The steps include

a)       having in place a comprehensive policy which had been communicated to all employees by email,

b)      provided training to management so enabling a swift response to the initial informal complaint,

c)       acting to support the complainant by not requiring her to work her night shifts,

d)      providing support through the Employee Assistance Programme

e)      acting to appoint an Investigative Board within four days of the formal complaint

f)        implementing the recommendation of the Investigative Board

g)       supporting the complainant through its sick leave policy that provided her paid sick leave from 30 June 2021.

I decide the complainant was not discriminated against by the respondent by reason of sexual harassment.  I decide the complainant was not the subject of adverse treatment because of raising a complaint of sexual harassment.

Sexual Harassment

Gender