Complainant

Respondent

Parties

Anita Whyte Moran

Zatori Results Limited

Representatives

The HR Head

Barry O’ Mahony BL, instructed by  Arag Legal Protection Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00057734-001

16/07/2023

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

CA-00057734-002

16/07/2023

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

CA-00057734-005

04/01/2024

The Complainant was employed in the position of Operations Manager from 2 January 2019 until the termination of her employment on 3 February 2023. The Complainant alleges she was unfairly dismissed. The Complainant also alleges discrimination on the grounds of gender and family status; sexual harassment; and victimisation contrary to the Employment Equality Acts, 1998-2015. The Respondent refutes all claims.

Oral Evidence of the Complainant (under Affirmation)

The Complainant commenced employment as Operations Manager on 2 January 2019 following the successful completion of a four-stage recruitment process, which included three meetings with the Managing Director and one meeting with the Company Accountant. She was not asked about her qualifications at any stage during the recruitment process. She was appointed to build morale and increase productivity. Initially the Complainant got on well in the role and with Mr O’Brien, Managing Director, however Mr O’Brien could be difficult to report into as he often undermined her decisions and punished her if she was out sick. In March 2020 Mr O’Brien told the Complainant to collect Personal Protective Equipment (PPE) in Dublin. The Complainant told Mr O’Brien that she was not comfortable doing this as it would mean breaking the travel restrictions, but she was instructed to go. The Complainant outlined that she asked Mr O’Brien why he could not do it as he lived in Dublin. He said “no” as he had to protect his family. The Complainant felt that her health and safety was not considered.

In July 2020 the Complainant told Mr O’Brien that she intended to travel to the Ukraine to explore surrogacy. Mr O’Brien congratulated her. She told Mr O’Brien that the process was expensive. Mr O’Brien said he would give the Complainant a €10,000 bonus as productivity had increased due to the sale of PPE. The Complainant went to Ukraine on 6 September 2020 and isolated for two weeks on her return.

The Complainant said there was a definite change in how Mr O’Brien treated her when she returned from Ukraine in September 2020. Mr O’Brien was hostile and he was undermining the Complainant’s work plans. He ignored the Complainant and talked to others and not her. This would not have happened previously. The Complainant described the work environment as chaotic at this time. Halloween is one of the business periods for the business. She had warehouse staff hired and in place but Mr O’Brien decided to bring in DPD and he took staff out of the warehouse. The Complainant described how she was asked on one occasion to load vans with cages which were full of parcels. The work was physically onerous as a cage alone weighed 65kg. This resulted in the Complainant hurting her back. She had not received manual handling training. The Complainant said she was told to do this work despite there being plenty of men in the warehouse that night. By 31 October 2020 things quietened down.

On 12 November 2020, the Complainant received an email from Mr O’Brien. This email was opened to the hearing. In this email Mr O’Brien raised issues concerning customer service. The Complainant outlined that she felt Mr O’Brien was picking on her when he knew these things were outside her control. The company was not managing customer expectations. It was taking an extra €10 from customers knowing that it was not able to meet next-day-delivery. The atmosphere was dreadful and customers were irate. The Complainant outlined that there was an increase in customer service complaints as customers could not get through to the Company because staff had been told to prioritise work in the warehouse. There were also issues in October 2020 due to Covid-19 as the company could only have a certain number of persons present in the warehouse and in customer service. It was difficult to predict how much business was going to come in. Mr O’Brien redirected staff from customer service to the warehouse because it was so busy and the warehouse needed all hands-on deck. “Then he came to me because I’m Operations Manager. I felt I was being victimised for something outside of my control. I felt it every day I went into the business. I was going to the Ukraine in December 2020. He was trying to find things wrong and manage me out of the business despite all my hard work. I received this email at 2am in the morning”.

The Complainant directed the hearing to her response to Mr O’Brien’s email of 12 November 2020. Mr O’Brien rang her then but he never said anything other than it had been a hard week. The Complainant outlined that she was attending doctors and Mr O’Brien should have treated her properly. The Complainant outlined that she had attended a surgeon on 26 November 2020 regarding the need to have ulcers removed. The Complainant said the ulcers were due to stress. The business was just so chaotic due to demands. The Complainant had surgery on 30 November 2020 and was discharged from hospital on 3 December 2020. She sent Mr O’Brien a medical certificate but continued to work from home as there was little staff and she wanted to keep her job because she was about to spend €70,000 on surrogacy. The Complainant felt her job was under threat and that Mr O’Brien wanted to manage her out.

The Complainant outlined that she got an infection and on 7 January 2021 she was advised by her doctor to rest. She told Mr O’Brien that she would return to work on 11 January 2021. The Complainant asked Mr O’Brien would she be paid and he said “no”. The Complainant felt this was so unfair and discriminatory given how much she had worked and had been doing. Mr O’Brien left her short payment for one public holiday. The Complainant confirmed to the hearing that she was the only one on sick leave at the time. There was a policy of paying 3 or 4 days of sick pay but she had exhausted that.

The Complainant returned to work on 11 January 2021. She outlined that “things were hostile, he ignored me, isolated me, it was uncomfortable. I felt he was really compounding the situation to manage me out. I felt he was doing things to torment me. I shouldn’t have had to ask for payment for the public holiday”. The Complainant had a meeting with Mr O’Brien on 15 January 2021. During that meeting Mr O’Brien spoke about firing an employee in another business he owned and that he said that there was nothing he did not know about employment law. The Complainant outlined that he also spoke about sacking a person due to absence. Mr O’Brien knew that she was desperate to get to Ukraine and have a child. The Complainant had a panic attack that night.

On 20 January 2021, the Complainant had a meeting with all staff as had been requested by Mr O’Brien, the purpose of which was to generate ideas for the business. She later met with Mr O’Brien. However, he was 40 minutes late for this meeting and then proceeded to tell the Complainant that he was unhappy with the feedback from staff. During this meeting, the Complainant said to Mr O’Brien that she felt she was being bullied by him. Mr O’Brien responded to say that he felt the Complainant was feeling overwhelmed due to the impact of Covid-19 and that perhaps she should have therapy. Mr O’Brien added that he would pay for therapy for the Complainant and reassured her that he would not have given her flowers or a voucher in December 2020 if he were bullying her. The Complainant reiterated to Mr O’Brien that she felt she was being bullied. Mr O’Brien also told the Complainant that he was bringing in a person “Ms D” to speak to all staff regarding ideas for growing the business.

On 9 February 2021, the Complainant met with Ms D to discuss ideas for generating business. She told Ms D her concerns regarding Mr O’ Brien’s micromanagement of her. On 11 February 2021 Mr O’Brien met with the Complainant and told her he was not happy with the feedback she had given to Ms D regarding her concerns of micromanagement. The Complainant asked Mr O’Brien if he had questioned any other employee with regards to the feedback they had given to Ms D, to which he responded that he had not. The Complainant stated that she left the workplace that day and remained on sick leave until the termination of her employment. She was initially certified sick due to workplace stress for a period of 12 weeks. Mr Steve Kehoe was then hired on a temporary basis as CEO, and Mr O’Brien stepped back from managing the business.

In March 2021, the Complainant had further surgery. She wrote a social media post in which she said that her manager had said to her that she was “too touchy feely” and that what that means in fact is that she is empathetic.

In May 2021, the Complainant received an invitation from Mr Kehoe to meet him at the Respondent’s premises. Mr Kehoe showed the Complainant physical changes that had been made to the premises since she went on sick leave. He also asked her if she was looking for a job elsewhere and the Complainant confirmed she was not as she had a job with the Respondent. The Complainant said that Mr Kehoe said to her that she was a ticking time bomb waiting to go off and that off the record she should put her grievance in writing and that they could come to a settlement. The Complainant asked was Mr O’Brien gone as she couldn’t work with him, to which Mr Kehoe said “no”, and that he himself was temporary. The Complainant outlined that she went to her desk to clear it, and she sent to her private email several emails to assist her to formulate her grievance. She also copied the same emails to her work account so the Respondent could see what emails she had forwarded to herself. The emails she forwarded to herself included Mr O’Brien’s email of 12 November 2020 and her response to same, and a payslip belonging to another employee. The reason for forwarding the payslip was to show that her work colleague, a temporary employee, had received payment for the public holiday which she had not received. The Complainant confirmed to the hearing that this colleague was female. She also sent other emails to herself. Some of the emails had a hyperlink to customer details, however, if this link were clicked on outside of the Respondent business, it would not bring you to those customer details.

On 24 May 2021, the Complainant was removed from the IT system. She was told this was due to a security breach. The Complainant submitted that she was not surprised and that she had been removed from the system so that she would not be able to fight this case. On 25 May 2021, the Complainant received an email from another Director of the business to advise that in forwarding the emails to herself she had breached the company GDPR policy. On 28 May 2021, the Complainant received a solicitor’s letter requesting she take certain action within a specified period including the deletion of the emails. The Complainant submitted that Mr Kehoe had encouraged her to send these emails to herself and now he was penalising her for it. She told Mr Kehoe to leave her alone as her father was in palliative care at this time. The Complainant felt the letters were intimidating and threatening and that they were victimising her and coming after her and that she had nowhere to go. She thought Mr Kehoe was going to help her. This was done to silence her and to get her to resign.

On 10 June 2021, the Complainant received a second letter from the Respondent’s solicitor again requesting certain action to be taken with regards to the emails she had sent to her private email account. The Complainant contacted Mr Kehoe and asked that the solicitor’s letters stop as her father was in palliative care. Mr Kehoe told her that she did not want a fine or to lose her home so just sign the letter and everyone could move on from the incident. The Complainant signed the letter and returned it to the solicitor.

On 12 August 2021, the Complainant sent Mr Kehoe her grievance in writing as had been requested by him. Mr Kehoe invited her to a meeting on 30 August 2021 to discuss the grievance. He went through all the points she had raised in her letter. Mr Kehoe queried if the Complainant had received manual handling training in Module 1 of a training course she had referenced on her CV. The Complainant asked Mr Kehoe why he was mentioning the issue of her qualifications now when this had not been raised at the recruitment stage or anytime thereafter. Mr Kehoe said that the issue of her qualifications had not been raised at interview because Mr O’Brien was intimidated by her qualifications. The Complainant said she laughed and responded that the company was trying to come after her. The Complainant outlined that she had completed courses with Enterprise Ireland similarly named to the one she had stated on her CV, and that if she had really meant that she had completed that particular course stated on her CV, why would she be working in a warehouse. The Complainant outlined that Mr Kehoe requested weekly medical certificates but had been accepting 12 weekly certificates previously. The Complainant told Mr Kehoe that she felt victimised and that the company were trying to come after her.

In September 2021, the Complainant requested a formal grievance hearing to be conducted by an external party. The Respondent appointed an external HR Company and referred the Complainant to an external occupational health provider to ascertain if she was fit to participate in a grievance investigation considering she was absent due to stress. The Complainant was certified fit to engage in the grievance investigation. However, the Complainant heard nothing further from the Respondent. She emailed the Respondent on several occasions asking when the investigation would commence. She received no response until January 2022, which requested her attendance at another occupational appointment to confirm fitness to participate in the grievance investigation. The Complainant was again certified fit to participate in a grievance investigation. In April 2022, the Complainant was contacted by the external HR Company regarding the investigation into her grievance and an investigatory meeting took place between her and a HR Consultant on 4 May 2022. On 3 May 2022, the Respondent cancelled the Complainant’s death-in-service policy.

The Complainant confirmed to the hearing that she had no difficulty with the external HR Company appointed to conduct the investigation. An investigation into the Complainant’s grievance was concluded and the finding was not to uphold any of the Complainant’s grievances. The Complainant confirmed to the hearing that she did not appeal the outcome of the grievance investigation as her mental health was low and that the external HR Consultant was not independent as the Respondent had engaged him for years. The Complainant continued to be absent from work due to stress.

On 4 August 2022, the Complainant was contacted by Mr Perrot, COO. The Complainant met with Mr Perrot and an external HR Consultant at a hotel. The Complainant was accompanied by a friend at this meeting. The Complainant was asked to consider mediation. The Complainant said no to this. The Complainant was asked if she would consider a compromise agreement and she responded no to this also.

In October 2022, the Complainant received an invitation to a disciplinary meeting. The Complainant understood that these issues had been cleared up in August 2021. The Complainant responded that the disciplinary action was a further act of victimisation. She had done a good job, there were no issues with her performance, and that they were using this to come after her. A disciplinary investigation subsequently took place.

In January 2023, the Complainant was asked to meet Mr Kehoe for a disciplinary hearing. During this hearing, the outcome of the disciplinary investigation was put to the Complainant. Towards the end of the hearing Mr Kehoe said to the Complainant that she had introduced herself to him when he met her first by saying words connected with her genitalia (details of which were given in evidence). The Complainant stated that Mr Kehoe said this to humiliate her and mock the fact that she required surgery to her genitalia. It was noteworthy that he did not mock any other disability she had. The Complainant outlined that this conduct constituted sexual harassment. The Complainant said that the comment was made after Mr Kehoe became angry in the meeting and could not hide his contempt. A recording of the meeting between the Complainant and Mr Kehoe was played to the hearing. Minutes of this meeting were also opened to the hearing.

During cross-examination, the Complainant confirmed that she had not completed the “Enterprise Ireland – Leadership for Growth Programme” in 2012 as stated within her curriculum vitae (CV). The Complainant confirmed that she did not have a certificate of completion for the course she did do that year, nor did she provide the Respondent with proof of having completed any similarly named course during the disciplinary process. The Complainant accepted that “Enterprise Ireland – Leadership for Growth Programme” was a unique course. The Complainant accepted that the Respondent was entitled to rely on what was in her CV, but she added that it was the responsibility of the Respondent to do due diligence and check her qualifications. The Complainant agreed that when the Respondent discovered she did not in fact have the said qualification, they were entitled to take issue with that. The Complainant submitted that the Respondent was not entitled to so years after her appointment. It was put to the Complainant that it was years later when the anomaly came to the Respondent’s attention. The Complainant denied that her qualifications had been discussed at interview, and denied that she knowingly falsified her CV.

The Complainant confirmed that Mr O’Brien’s management style was the same since the commencement of her employment and that his management style had nothing to do with her family status or gender. The Complainant denied she had a personality clash with Mr O’Brien. The Complainant agreed that she challenged him on his business decisions. It was put to the Complainant that this is a normal interaction between members of a senior management team. The Complainant agreed she could delegate duties but disagreed that she could delegate the collection of PPE items in March 2020.

The Complainant agreed that Mr O’Brien was supportive at the time she told him of her plans to travel to Ukraine. It was put to the Complainant that she was facilitated to take leave in September to travel to Ukraine despite this being the Respondent’s busiest time. The Complainant agreed she was facilitated to take leave but stated that October and not September was the Respondent’s busy period. It was put to the Complainant that the busy period does not automatically switch on in October, but rather starts several weeks earlier. The Complainant agreed that Mr O’Brien was aware that she would have to isolate on her return in September 2020 due to Covid-19 restrictions and that he facilitated her working from home despite it being the busiest period for the company. The Complainant accepted that as Operations Manager she would have primary responsibility for operations in 2020. It was put to the Complainant that it would therefore not be expected that Mr O’Brien would be directly involved in operations at this stage given it was the second year of her employment. The Complainant responded that he did not step back. The Complainant was asked how Mr O’Brien could have ignored her if he was still involved in operations, to which the Complainant replied that both could co-exist. It was put to the Complainant that Mr O’Brien’s normal management style continued as normal. The Complainant agreed but added he became more hostile after her return from Ukraine. The Complainant was asked for examples of this hostility. The Complainant responded that Mr O’Brien brought in DPD and who would do that. It was put to the Complainant that this was an operational decision and nothing to do with her gender or family status. The Complainant stated that it was a decision that caused her stress and resulted in her having to physically load vans which resulted in an injury to her back. The Complainant confirmed the Warehouse Manager reported into her. It was put to her that she could have delegated the loading task to him. The Complainant disagreed and submitted Mr O’Brien directed her to do it. It was put to the Complainant that it was her job to arrange manual handling training for all staff. The Complainant disagreed.

The Complainant agreed that the email of 12 November 2020 concerned operational matters only and contained nothing of a discriminatory nature. The Complainant confirmed that while Mr O’Brien had sent the email of 12 November 2020 at 2am, she did not see it until the following day. The Complainant agreed that the contents of the email and her response constituted normal robust management communication concerning operational issues.

The Complainant accepted that Mr O’Brien sent her a voucher and flowers during her absence in December 2020, and that she had thanked him. She also accepted that she had described him as kind for giving an item to her nephew. It was put to the Complainant that this was not the conduct of someone who was treating her badly. The Complainant disagreed and stated that a person can be two things at the one time. It was put to the Complainant that there was nothing to justify her belief that her job was at risk in December 2020. The Complainant disagreed and added that she was being ignored and Mr O’Brien was hostile. The Complainant agreed she had exhausted her sick pay entitlement by December 2020 but she felt Mr O’Brien could have paid her for her absence that month as she was his Operations Manager and had worked hard. It was put to the Complainant that Mr O’Brien would give evidence that his reference to another employee being dismissed was said in the context of a conversation concerning the underperformance of another (named) employee who reported into the Complainant, and it was not a veiled threat to her. The Complainant disagreed. It was put to the Complainant that if Mr O’Brien was displeased with the feedback given to Ms D it was because the Complainant had directed the staff to raise negative feedback. The Complainant disagreed. The Complainant disagreed that Mr O’Brien did not know he was meeting her at a specified time on 20 January 2021 but accepted that no calendar invite had been sent to him.

The Complainant confirmed that the first time she complained of Mr O’Brien’s behaviour was at the meeting of 20 January 2021. The Complainant accepted that she did not use the word ‘discrimination’ but rather ‘bullying’. The Complainant submitted that she did not have the language around ‘discrimination’ and she had told Mr O’Brien that his behaviour was inappropriate and that she was being treated differently since she returned from Ukraine. The Complainant agreed that Mr O’Brien said to her in response that she was feeling over whelmed and offered to pay for therapy. The Complainant agreed that Mr O’Brien thought the matter was resolved and confirmed that she availed of the offer of therapy. The Complainant agreed that Ms D was brought in at this time to assist with operations. The Complainant agreed that the initial medical certificates submitted to the Company did not state work related stress. The Complainant agreed that she had no further contact with Mr O’Brien after February 2021.

The Complainant accepted that a social media post in March 2021 in which she referred to her manager not being a people person referred to Mr O’Brien. The Complainant confirmed that the Company could be identified from this post. The Complainant confirmed she was asked to remove the post.

The Complainant denied she made a comment regarding her female anatomy at her meeting with Mr Kehoe on 21 May 2021. The Complainant denied that it was she who said she wanted compensation to leave her employment. It was put to the Complainant that Mr Kehoe did not direct her to send herself emails or to clear her desk. The Complainant disagreed. The Complainant agreed that she did not respond to several communications sent by and on behalf of the Respondent requesting the Complainant to delete the emails within a specified period for GDPR reasons. The Complainant agreed that the threat of criminal sanction and fines was not the Respondent threatening her and that it was in her interest to know the implications of failing to comply with a request to delete the emails. The Complainant submitted that she felt threatened regardless. It was put to the Complainant that her failure to comply with the requests to delete the emails, which lead to her feeling continuously threatened, was a matter of her own making. The Complainant agreed.

The Complainant agreed that her formal grievance complaint in August 2021 referred to ‘bullying’ and not discrimination, and that the first medical certificate to state ‘work related stress’ was dated 26 August 2021 even though she had been absent since February 2021. The Complainant agreed that an external investigator was appointed following her request for same. The Complainant agreed that her complaint of bullying was not upheld, and that she did not appeal the outcome of that investigation. The Complainant agreed she continued to submit medical certificates thereafter which certified her as unfit for work. It was put to the Complainant that the delay in conducting the grievance investigation was due to her being certified as unfit to work by her GP.

Counsel for the Respondent opened several social media posts to the hearing. The Complainant accepted these posts were made by her during her absence and that they related to her life experience which she confirmed as being her employment with the Respondent. It was put to the Complainant that these comments were made despite her complaint of bullying not being upheld by an external consultant.

The Complainant did not accept that Mr Kehoe was reserved at the meeting on 24 January 2023. The Complainant accepted Mr Kehoe reiterated words relating to female genitalia at the meeting in response to a question from the Complainant’s representative. The Complainant disagreed that this was not an act of sexual harassment.

In relation to the complaint of unfair dismissal, the Complainant outlined that she holds several qualifications some of which were completed with Enterprise Ireland. The Complainant was unaware of the existence of the “Leadership for Growth Programme” until Mr Kehoe brought it to her attention. She immediately responded that she did not do that programme. The Complainant outlined that her qualifications only became an issue in 2021 when she would not resign.

The Complainant had an accident after her dismissal and was unavailable for work until the first week in June 2023. She started looking for employment on 8 June 2023. The Complainant took the hearing through nine applications she made for jobs over a 3-month period. She secured a part-time job on 1 September 2023 working 18 hours per week for €15 per hour. The Complainant was available for full-time work and made three applications for full-time positions since 1 September 2023, but was not successful in these applications.

In cross-examination the Complainant confirmed that she continued to make daily social media posts before, during and post her employment with the Respondent, some of which related to her lived experience which she agreed included her experience of working with the Respondent. It was put to the Complainant that she had posted “that she would not be silenced” and that the posts were evidence of this. The Complainant agreed. The Complainant accepted that the Respondent had suggested mediation on 4 August 2022 and that this had been refused by her. It was put to the Complainant that she then proposed that the Respondent make her a settlement offer. The Complainant denied this. The Complainant submitted that she did not propose this as she did not know the scale of her injuries at that point. Counsel for the Respondent opened minutes of a meeting between the Complainant and Mr Perrot. The Complainant accepted she signed these minutes. It was put to the Complainant that the minutes of this meeting confirm she was looking for a settlement. The Complainant stated that was correct but when contacted again after this meeting, the option of a settlement was unacceptable to her.

The Complainant accepted that she had no documentary proof of a course completed by her in 2012, and that she did not put forward any mitigating factors at the disciplinary hearing. The Complainant confirmed that she was represented during the disciplinary process and had been given an opportunity to appeal the outcome which she exercised. The Complainant confirmed that the grounds of her appeal was confined to two substantive matters, and that she did not raise any procedural grounds of appeal. It was put to the Complainant that her defence in relation to the social media postings were that they did not relate to the Respondent, but that she acknowledged during the adjudication hearing that the postings were related to her lived experience while employed with the Respondent. The Complainant agreed. The Complainant accepted that she misrepresented her qualifications on her CV and that the Respondent was entitled to rely on her CV as presented. The Complainant submitted that she did not deliberately intend to mislead the Respondent. The Complainant disagreed that the only option for the Respondent was to dismiss her.

Oral Evidence of Aisling Devoy (under affirmation)

Ms Devoy outlined that she was present at the disciplinary hearing on 24 January 2023. She outlined that Mr Kehoe repeated a comment made by the Complainant at an earlier meeting between them. Ms Devoy stated that Mr Kehoe did not make any physical gesture as he spoke, and she did not witness any inappropriate behaviour on the part of Mr Kehoe, nor did she feel there was any aggressive tone at the meeting. In cross-examination, Ms Devoy confirmed that she was not at the initial meeting between Mr Kehoe and the Complainant and agreed that she could not know what was said at that meeting.

Oral Evidence of Mr Ronan O’Brien (under oath)

Mr O’Brien told the hearing that he started the business 17 years ago. The business employs eight people. The busiest period for the company is from 1 September to 31 October each year. He needed to off load operations and advertised for the vacancy of Operations Manager in 2019. This position was to be a senior management position. The company accountant assisted in a 4-stage recruitment process. The Complainant was one of three persons shortlisted. The Complainant stated she had completed the Leadership for Growth Programme. This course was known to Mr O’Brien as he had a desire to do it himself. It is known to be a prestigious programme with onerous admissibility criteria. Mr O’Brien went through the complainant’s CV with her, including her educational attainments. The fact that the Complainant had run a company larger than the Respondent company and that she had completed a course that he wanted to do himself influenced Mr O’Brien to offer the job to the Complainant. Halloween is the busiest period for the business and the Complainant shadowed him during her first Halloween with the business. It was Mr O’Brien’s expectation that the Complainant would be fully capable of directing operations thereafter, and his intention was to step back from that function. Mr O’Brien thought there were no issues between him and the Complainant in 2019 and that there were friends. The Complainant referred to her love for working with the team at the company which Mr O’Brien thought included him.

In March 2020 due to Covid-19, there was less demand for trophies and costumes and he was looking for ways to expand the business. The Complainant suggested sanitisers, which Mr O’Brien agreed too. He also sourced PPE. None of this was profitable, however it kept the doors open and everyone employed during Covid-19. Mr O’Brien submitted that the Complainant was not directed to personally collect PPE. She was the Operations Manager and it was open to her to delegate the collection of PPE to any member of the warehouse team.

In July 2020, the Complainant told him that she intended to travel to Ukraine in September 2020 to explore surrogacy. Mr O’Brien outlined that he did not offer the Complainant a bonus of €10,000 but he did say that there was potential for her to earn a bonus of that amount that year. Halloween and the lead up to it are the busiest period for the company, and normally he would not approve annual leave at that time of year. However, due to the nature of the request he had no difficulty agreeing annual leave for the Complainant to allow her to travel at that time. He was aware that the Complainant needed leave for 5 days and that she would need to work from home for two weeks on her return due to Covid-19 restrictions in place at the time. He worked on-site during this time to allow the Complainant to work from home. Mr O’Brien outlined that there was no change to his behaviour towards the Complainant on her return from Ukraine. He had no concerns at this time regarding his relationship with the Complainant. Mr O’Brien denied that his management style was as the Complainant had described to the hearing. Rather, turnover of staff was low and he treated his staff very well.

Mr O’Brien submitted that he had an expectation that the Complainant would be fully competent to run operations by Halloween 2020 given this was her second year with the company. The company normally hires temporary staff for the Halloween period. It was hard to do so in 2020 due to the Covid-19 subsidy. However, there was sufficient cover. The nature of the business did not require any person to work outside of the hours of 9am to 5pm.  

On 12 November 2020, Mr O’Brien sent an email to the Complainant in which he raised operational issues following customer complaints that staff were not calling customers back. The purpose of the email was to address these issues with the Complainant; however she was not open to feedback and reacted defensively to the email. It was nonsense for the Complainant to claim that the email had anything to do with her gender or family status. It was not possible to say that all was running well in the company when it clearly was not. Not all was bad and positive feedback was given to staff and bonuses paid to staff that year.

Mr O’Brien outlined that there was no issue with the Complainant travelling to Ukraine in September 2020 or taking leave for surgery in November 2020. All leave requested, including intermittent absences, were facilitated without issue. Mr O’Brien outlined that the Complainant was entitled to three days paid sick leave and that she exhausted that entitlement by December 2020. On 11 December 2020, the Complainant requested a Christmas voucher. Mr O’Brien dropped this to her home and stopped on the way to get flowers for the Complainant as she was on sick leave. He submitted that he was working 18-hour days at this time to cover his work and that of the Complainant. Various text messages were opened to the hearing including: “Thank you so, so much for the beautiful flowers, I really appreciate them and of course the voucher”. On 16 December 2020, the Complainant messaged Mr O’Brien: “Thank you so much for the rollator, Conor just dropped it to my mam, she couldn’t believe how kind and generous you were . . . .” On 12 February 2021, the Complainant send a text to Mr O’Brien to say she could not come to work as she was unwell. Mr O’Brien responded: “Hi Anita, very sorry to hear you aren’t feeling well. Take all the time you need. I’ll do handover and anything you need. Let me know if there’s anything at all I can help with. Get well soon.”

In January 2021 Mr O’Brien asked the Complainant to obtain feedback from staff on how the business could be better run. During this conversation they discussed the performance of a particular staff member and concerns they shared regarding this individual’s productivity. Mr O’Brien said to the Complainant that there were two options: work with the person to improve their performance or let the person go. Mr O’Brien said he has no idea that the Complainant could relate this conversation to herself.

Mr O’Brien submitted that the Complainant told staff after this meeting that “we need negative feedback about your feelings”. He was annoyed at this and the work it generated for him on foot of the feedback received. He outlined that he was not late for a meeting with the Complainant as alleged by her. There was no calendar invite in his diary and he arrived onsite at his normal time. He did meet with the Complainant and during this meeting she told him that she felt bullied by him. He asked her for examples and she could not give him any. She said that he was focusing on the negatives in the company and not what was working well. Mr O’Brien submitted that every business must focus on what is not working well with a view to improvement. He thought he was working with a very experienced and knowledgeable senior Operations Manager who should know this. If she was feeling stressed it was because she was not as qualified as she had made herself out to be. He told the Complainant that he would bring in an external consultant ‘Ms D’ to review operations with a view to determining how things might be done better. The Complainant did not complain of discrimination at this time. Mr O’Brien thought everything was all right between them after this meeting. The Complainant sought payment for various expenses and for a public holiday but she was not paid for these expenses as it was against revenue rules and as she had taken more than her annual leave entitlement, she was not paid for the holiday. Mr O’Brien submitted that he was not trying to manage the Complainant out and as far as he was concerned there was no hostility between them.

Ms D met with all staff and gave feedback to Mr O’Brien in February 2021. Ms D was of the view that operations was a mess and the business was not being run properly. She made various recommendations, including the appointment of two persons. Mr O’Brien outlined that he was experiencing personal issues also at this time. His wife was seriously ill. He needed to step back from the business. Ms D recommended that Mr O’Brien engage Mr Kehoe on a 3-month assignment and appoint Mr Perrot, both of whom were known to Ms D. Mr Perrot was fluent in Chinese and he would head up logistics. The Complainant was to report into Mr Kehoe. The Complainant went on sick leave on 12 February 2021 and did not return to work thereafter. Mr O’Brien outlined that he had no further interactions with the Complainant after February 2021 as Mr Kehoe took over as acting CEO. Mr O’Brien outlined that he was interviewed months later as part of a formal investigation into the Complainant’s complaint of bullying.

In cross-examination Mr O’Brien confirmed that he did not retain a copy of the job advertisement for the position of Operations Manager. It was put to him that it was not a requirement for the role to have completed the Leadership for Growth Programme. Mr O’Brien responded that the other candidates short-listed were qualified to Masters level, but that the course the Complainant claimed to have done was known to him as it was a highly sought after course and he had wanted to do that programme himself. The Complainant confirmed to him in the interview that she had spent time in Standford while doing the course. Mr O’Brien was asked if he thought it odd that a person who had completed such a sought-after course was taking a job for €47,000. Mr O’Brien disagreed and outlined that he understood she had sold her own company and was looking for a 9 to 5 job. The company was expanding and if she did well, she had the chance to earn considerable bonuses. Mr O’Brien denied that the Complainant was instrumental to the decision to sell PPE, rather she suggested it and the company trialled it but made no money from it. Mr O’Brien confirmed he was aware that the Complainant would have to travel to Ukraine again. He agreed he said that it was a bad week when he sent the email of 12 November 2020 but he had not intended to upset her. Operational issues had to be dealt with and that is why he sent the email. Mr O’Brien denied that he required the Complainant to work while on leave in December 2020 other than one issue that required her attention. He denied he was copied on emails which evidenced that the Complainant was doing other tasks while on leave. Mr O’Brien submitted that it was him who was doing 100 percent of the job of Operations Manager while the Complainant was on sick leave. Mr O’Brien denied that there was an issue in relation to the Complainant’s performance. Rather Ms D came in, without charging a fee, to audit operations and because of the Complainant telling him that she felt over whelmed. Mr Kehoe was appointed because Mr O’Brien needed to step back for personal reasons and Mr Perrot was appointed in the role of Head of Logistics and Sourcing. It was put to Mr O’Brien that Mr Perrot’s LinkedIn profile describes himself as COO with the Respondent since February 2021. Mr O’Brien responded that that is his title now but that was not the position he was hired into initially. Nor was he hired to take over the Complainant’s role. Mr O’Brien agreed that it was frustrating that the Complainant submitted her expenses incorrectly. He added that someone with her experience should know revenue rules. Mr O’Brien confirmed that both Mr Kehoe and Mr Perrot came from the same organisation and were engaged by the Respondent on the same day.

Evidence of Mr Stephen Kehoe (under oath)

Mr Kehoe outlined that he had been approached by Ms D who had worked with him previously. She asked him to temporarily work with the Respondent. Mr Kehoe outlined that he often worked with companies experiencing difficulties. Mr O’Brien was not known to him. He ended up staying with the Respondent company after an illness and because he got on well with Mr O’Brien. Mr Kehoe received an email from the Complainant welcoming him to the company. He arranged to meet her on 21 May 2021 to discuss her return to work. Mr Kehoe made a contemporaneous note of his meeting with the Complainant as it was the most bizarre meeting he had in his 30 years work experience. No other female employee had ever referenced their genitalia in a meeting with him before. He emailed Mr O’Brien after the meeting and attached a copy of the contemporaneous note. This email was opened to the hearing and the date it was sent by email was displayed to the hearing on a laptop. Mr Kehoe told the hearing that the meeting was over 3 years previous and that he had a stroke recently, and that he needed to rely on his note of the meeting. He said he did not recall exactly what words he used regarding inviting her to make a grievance, but that he did invite her to make a formal grievance. Mr Kehoe submitted that under no circumstances did he give the Complainant permission to send emails to herself, nor did he see her doing this. GDPR is of critical importance to the Respondent because of the clients they service. He did not sit across from her while she was at her desk. He saw her go to her desk to collect personal items.

The following day Mr Kehoe was alerted to the fact that the Complainant had breached the company GDPR policy. He sent her an email requesting she delete the emails. He does not recall getting a response to that email. Solicitors letters were sent to the Complainant thereafter requesting her to delete the emails. The Complainant did not respond to most of these letters. The letters required her to delete the emails within a specified number of hours else the Respondent would be fined. He did not threaten the Complainant. Rather the Complainant rang him, screamed at him, and mentioned her father. Once the Complainant completed the form as requested by the solicitor that was the end of that matter. It cost the Respondent €27,000 to resolve the breach.

The Complainant submitted a written grievance in August 2021. Mr Kehoe met with her to discuss that grievance. The Complainant made no mention of discrimination in that written complaint. At that meeting the Complainant requested an external investigator. This was agreed to. During the meeting Mr Kehoe said to the Complainant that she should have known the requirements of GDPR given she had completed the Leadership for Growth Programme. The Complainant said she never completed this programme but had done a course with a similar name. The Respondent regarded this as a disciplinary matter but did not alert the Complainant to this until October 2022 because they were advised not to do so as the Complainant was on sick leave.

The Complainant was sent to Medmark on 6 October 2021 to ascertain her fitness to participate in the grievance investigation. Medmark confirmed she was fit to participate in an investigation; however the Complainant submitted a medical certificate from her GP after this which stated she was unfit for work. The months September to November were busy periods for the company. An external consultant was engaged to conduct the investigation into the Complainant’s bullying complaint. The Complainant was sent to Medmark again to check if she was fit to engage in an investigation. The investigation commenced in April 2022. None of the allegations of bullying were upheld and the Complainant did not appeal the outcome.

On 7 October 2022, the Complainant was invited to a disciplinary hearing for continuing to post on social media platforms commentary which was damaging to the company despite having been told by the Respondent months earlier to remove a comment. The Complainant was informed that the matter of misrepresenting her qualifications on her CV would also be considered. Terms of Reference were drafted for the hearing and Mr Perrot completed the investigation. A written report issued. This report was opened to the hearing and Mr Kehoe read the findings therein. On foot of these findings, he decided to invite the Complainant to a disciplinary hearing. This hearing was chaired by him as the most senior person in the company and given he was not involved with the issue before then. Mr Kehoe said he was not angry or abusive at this meeting and this was clearly evidenced to the hearing when the recording was played. He gave the Complainant an opportunity to respond to the findings of the disciplinary investigation. The Complainant said she made a mistake on her CV and she was fed up hearing about that. She said she did not feel safe and questioned why Mr Kehoe was doing the meeting. The Complainant’s representative kept challenging Mr Kehoe about what was said at the return-to-work meeting back in May 2021. Mr Kehoe repeated the comment the Complainant said to him about her genitalia at that meeting. He did not make any physical gesture when he repeated the words. At the end of the hearing the Complainant’s representative thanked him.

Mr Kehoe outlined that he decided to dismiss the Complainant because her social media posts were detrimental to the Respondent’s reputation. She did not desist from making these postings when asked to stop but instead ramped it up. She had told Mr Perrot during the disciplinary investigation that she would not stop making the postings. The claim on her CV of having completed a course she did not was also a huge thing and the Complainant never provided proof that it was a mistake. The Complainant made no apology or showed any attrition. While he considered sanctions short of dismissal, there was too much water gone under the bridge and no apology offered.

In cross-examination Mr Kehoe said he was sympathetic towards the Complainant when he first met her as he is a father and he encouraged the Complainant to raise a grievance. It was put to Mr Kehoe that within days of that meeting the Complainant was accused of a GDPR breach. Mr Kehoe said he was alerted to that breach by another staff member and that was what prompted him to deal with it. The nature of the breach required him to deal with the matter urgently and he spoke to the Respondent’s solicitors. Mr Kehoe was asked if he was aware the Complainant’s father was unwell. Mr Kehoe confirmed that the Complainant rang him shouting down the phone but that was after she failed to respond to several requests to delete the data. The Complainant gave him details of her solicitor who he contacted but that solicitor said he was not representing the Complainant. The Respondent was under serious pressure to deal within the issue within a specified period or it would be exposed to large fines. Mr Kehoe confirmed that the Respondent did not in fact incur a fine but that was because it managed to confine the issue, and it cost €27,000 to do so.

Mr Kehoe was asked how it was decided that he would chair the disciplinary hearing. He responded that the company had gone outside for advice and assistance in relation to the grievance, that it was a small company and that he was the only one that could conduct the meeting. In response to the question of whether that was appropriate given he had knowledge of the Complainant’s grievance, Mr Kehoe responded that he did not feel tainted in any way and that his previous encounter with the Complainant was an informal one which was held before she made a formal grievance complaint. Mr Kehoe accepted that the Complainant sent emails querying when the investigation into her grievance would take place. It was put to Mr Kehoe that that the Complainant had been certified as fit to participate in that investigation and yet it was delayed for months.

Mr Kehoe was questioned about his knowledge of GDPR being a module on the Leadership for Growth Programme. Mr Kehoe responded that he did not know this but that she should have known about GDPR requirements being a former company director herself. It was put to Mr Kehoe that the Complainant immediately acknowledged the error on her CV when he raised it and why was the issue not parked then. Mr Kehoe responded “no” and that he wanted to get to the bottom of it, and that the Complainant had said she would provide proof of the similar course she attended but she never did.

Mr Kehoe confirmed that the company did not provide social media training to staff. 

Mr Kehoe was asked what his intention was in repeating the comment at the disciplinary hearing. Mr Kehoe said there was no intention. He was repeatedly asked to reiterate what was said at the meeting in May and that is what came out. He had been so shocked by the description at the time that he never forgot it.

Mr Kehoe was asked about the actual detriment suffered by the Respondent in relation to the social media posts. Mr Kehoe outlined that Mr O’Brien was on committees and he was asked what is going on in the company. The Respondent was a small business with certain (named) clients and they were very concerned it would damage the company and result in the loss of contracts. Mr Kehoe confirmed no contracts were lost.

Mr Kehoe was asked did he not see a way back for the Complainant; was that why she was dismissed and did he not think he should consider a final written warning. Mr Kehoe responded “no”. The Complainant was asked to stop posting comments concerning the Respondent. She continued to do so. It was detrimental to the company.

In re-direct, Mr Kehoe confirmed that the Respondent had 3 days only to deal with the GDPR breach. He outlined that the Complainant submitted certs every 12 weeks but was asked to do so weekly. However, he did not insist on this when the Complainant stated that she could not afford to get weekly certs.

Oral evidence of Eugene Hanly (under affirmation)

Mr Hanly outlined his credentials and work experience to the hearing. He was contacted by an external HR Management company and asked to hear an appeal of a disciplinary outcome. Mr Hanly outlined the Terms of Reference for the appeal and described the way the appeal was conducted. Mr Hanly outlined the two grounds of appeal both of which rejected the findings of the disciplinary investigation. The grounds of appeal did not include procedural concerns. Mr Hanly took the hearing through the submissions of Complainant and Respondent given at the appeal hearing. Mr Hanly then issued a written report which upheld the disciplinary sanction of dismissal. Mr Hanly took the hearing through the reasons for his decision to uphold the Respondent’s decision to dismiss, namely, that the Complainant contributed 100% to her own dismissal; that the dismissal was both substantively and procedurally fair; that the Complainant’s actions were a breach of trust; that the Complainant’s collective actions showed a serious lack of judgment; that the Complainant had become unmanageable; that the Complainant made no effort to mitigate her actions; that the Complainant showed no remorse; and that the Respondent had no option but to dismiss the Complainant. In response to a question from the Adjudication Officer, Mr Hanly clarified that the issue of the delay in dealing with the misrepresentation on the CV issue as a disciplinary matter, was not cited as a ground of appeal by the Complainant.

CA-00057734-002  -  Employment Equality Act, 1998

RELEVANT LAW

The Employment Equality Acts 1998-2015 (“the Acts”) prohibits discrimination on several grounds, including the grounds of gender and family status. The Acts also prohibit sexual harassment. Sexual harassment is any form of unwanted verbal, nonverbal or physical conduct of a sexual nature. Penalisation, in circumstances amounting to victimisation for making a complaint, is also prohibited under the Acts.

Family Status

Section 2(1) of Acts provides that family status means: “responsibility (a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability”.

Prohibition on Discrimination

Section 6(1)(a) of the Acts provides discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds set out in s 6(2) including at “(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)” and “(c) that one has family status and the other does not (in this Act referred to as “the family status ground”) . . . .”

Section 8(1) of the Acts provides that an employer shall not discriminate against an employee or prospective employee in relation to inter alia “ . . . (b) conditions of employment . . .  .”

Conditions of Employment

Section 8(6) of the Acts provides:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Comparators

Section 28 (1)(b) of the Acts provides:

“For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: . . . in relation to the family status ground, C has family status and D does not, or vice versa . . . .”

Section 28 (1)(3) of the Acts provides:

“ Any reference in this Act to persons having the same relevant characteristic as C (or as D) shall be construed by reference to the discriminatory ground in relation to which the reference applies or, as the case may be, in relation to each of the discriminatory grounds (other than the gender ground) separately, so that . . . (b) in relation to the family status ground, the relevant characteristic is having the same, or the same lack of, family status as C (or, as the case may be, as D) . . . .”

For a person to establish that they were discriminated against because of their family status, they must provide evidence of being treated less favourably than another person is, has been or would be treated in a comparable situation on grounds of their family status and that the person in the comparable situation has a different family status to them. The Labour Court has previously held that when no similar employee is available for comparison, it may allow the employee to rely on a hypothetical comparator.

Harassment and sexual harassment

Section 14A provides:

“For the purposes of this Act, where—

(1)(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

(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 . . .

(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”.

Victimisation

Section 74(2) of the Acts defines victimisation as follows:

“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, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In Department of Defence v. Barrett (EDA1017), the Labour Court held that the definition of victimisation at s 74(2) “contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above).”

The act or acts which result in victimisation must be connected to a reliance on rights under the Employment Equality Acts 1998-2015. In Moriarty v. Dúchas (DEC-E2003-013) the Equality Officer outlined that it “is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”.

Burden of Proof

Section 85A of the Acts provides:

“(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 . . . (4) In this section "discrimination" includes . . . (b) victimisation, (c) harassment or sexual harassment . . . .”

Time Limits & Continuing Discrimination

Section 77(5) of the Acts provides:

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.” 

Under this section of the Acts, separate acts of discrimination may be sufficiently connected to constitute a ‘continuum of discrimination’. In the case of County Cork VEC v Ann Hurley (EDA1124), the Labour Court determined that in order for a complainant to rely on a continuum of discrimination or victimisation there must be a breach of the Acts during the cognisable period. The Court outlined that “there must be some reality in the claim that acts of victimisation [or discrimination] actually occurred within the limitation period as otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.” Further, there must be some link established “between the occurrences outside the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely” (emphasis added). The Labour Court later noted in Occipital Limited v Joseph Hayes (EDA 184) that it was “settled law that in order for alleged acts of discrimination to be considered as representing a continuum of discrimination it is necessary to establish that an act of discrimination has actually occurredwithin the cognisable period set down by the Acts for the making of a complaint” (emphasis added). In The Board Of Management Of Scoil Mhuire Agus Iosaf Junior School v Ms Pamela Brennan (EDA2220), the Labour Court, having first determined that the Complainant suffered no gender discrimination in respect of an aspect of the complaint which was within the cognisable period, concluded that there was no basis for the Complainant’s contention that an earlier alleged act of discrimination, which fell outside the cognisable period, was in a continuum of discrimination that rendered it admissible although outside the statutory time limit. The Court therefore determined this aspect of the complaint was also not well-founded.

Section 77(5)(b) of the Acts provides:

“On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly” (emphasis added).

Separate decisions

Section 79 of the Acts provides:

“(1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77 . . . (1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and (b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated, but a decision shall be made on each of the claims” (emphasis added).

FINDINGS

The Complainant’s case was that she was eager to have a child. She travelled to Ukraine in 2020 to explore surrogacy. The Complainant contends that on her return the Respondent “wanted her out”. She submits she was subjected to continuous discrimination to force her to resign. She further contends that when she complained about the treatment, she was victimised contrary to the Acts and dismissed (the Complainant elected to have her complaint in relation to the lawfulness of her dismissal heard under the Unfair Dismissals Act, 1977). The Complainant also submits that she was sexually harassed in 2023 contrary to the Acts. The Respondent submits that the alleged discrimination and victimisation relates to a period outside of the cognisable period for the referral of the complaint and is therefore statute barred. The Respondent refutes that the Complainant was sexually harassed in 2023.

As noted above, where a claim of discrimination and a claim of victimisation have been made, the WRC is required to decide on each of the claims.

Complaint of Discrimination on Grounds of Gender & Family Status

The Complainant referred the complaint under the Acts to the WRC on 16 July 2023, and therefore the cognisable period in relation to the complaint is 17 January 2023 to 16 July 2023. The Complainant alleges she was subjected to discriminatory treatment on grounds of gender and family status over a six-month period from September 2020 until February 2021. The Respondent submits that this complaint of discrimination is out of time. On the complaint form presented to the WRC, the Complainant cites the most recent date of discrimination as 24 January 2023. The Complainant submits that she was sexually harassed on 24 January 2023.

As noted above, incidents of alleged discrimination outside the time limit can only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make all of them part of a continuum. Thus, if the Complainant in this case can establish that an act of discrimination occurred between 17 January 2023 to 16 July 2023, it is open to me to consider matters that arose prior to that period and to consider if there was a continuum of discriminatory acts. Therefore, I must first examine the evidence before me in relation to the complaint of sexual harassment. Only if that complaint is upheld will it be necessary for me to consider the question of whether or not the alleged inappropriate treatment dating back to 2020/2021 is in a continuum with the complaint of sexual harassment such that it should be deemed to have been brought within time.

Complaint of Sexual Harassment

The Complainant alleges that Mr Kehoe sexually harassed her during a disciplinary hearing on 24 January 2023 when Mr Kehoe repeated words (details of which were given in evidence) he alleges the Complainant said to him concerning her genitalia at a return-to-work meeting in May 2021. The Complainant denies she said these words at that meeting. According to the Complainant Mr Kehoe said these words to humiliate her and mock the fact that she required surgery to her genitalia. It is the Complainant’s case that Mr Kehoe became angry in the meeting and could not hide his contempt. Further, he made a physical gesture towards his own genitalia when uttering the words. According to Mr Kehoe, the Complainant’s representative kept challenging him about what he said at the meeting in May 2021. Mr Kehoe stated that he repeated what the Complainant said to him about her genitalia at that meeting and that he did not make any physical gesture when he repeated the words. It was submitted by the Respondent, that the words spoken were not of a sexual nature, nor was a physical gesture made by Mr Kehoe when he said the words.

The definition of sexual harassment at s 14(A)(7)(a)(ii) of the Acts is subjective. Unwanted conduct which has the effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person may constitute sexual harassment regardless of the intention of the wrongdoer. The conduct must be of a sexual nature. It is not required to be specifically linked to a discriminatory ground. It may consist of spoken words and gestures. A single complaint is sufficient to breach the Acts. Where established in evidence, s 14A of the Acts provides that sexual harassment constitutes discrimination by the employer of the victim’s conditions of employment. 

It was not in dispute what was said by Mr Keogh at the disciplinary hearing. I have had regard to the context within which the comment was made, and the circumstances of the Complainant. I am not satisfied the conduct complained of (i.e., the spoken words and whether or not accompanied by the alleged gesture) was of a sexual nature, and therefore I find it does not come within the definition of sexual harassment at s 14(A)(7)(a)(ii) of the Acts. A reference to genitalia is not enough to constitute sexual harassment. Further, the unwanted conduct must be examined within the context in which it was said and/or done. A recording of the meeting and minutes of the meeting were opened to the hearing. Having listened to the recording of the meeting, I do not accept Mr Kehoe became angry in the meeting. On the contrary, Mr Kehoe remained calm and polite throughout the meeting. I am satisfied it was a challenging meeting to chair given the repeated accusations from the Complainant that Mr Kehoe was “gaslighting” her. On being pressed by the Complainant’s representative (“Jenny”) as to what he said at the return-to-work meeting, Mr Kehoe instead repeated what he says the Complainant said at the return-to-work meeting. I find the evidence of Mr Kehoe more credible that the Complainant did make the comment in relation to her genitalia at the return-to-work meeting in 2021 and that it shocked him (I note there are inconsistencies between what is alleged to have happened at that meeting in the narrative of the complaint form and the subsequent oral testimony of the Complainant with respect to this meeting). While I accept Mr Kehoe’s submission, that, when pressed to repeat what was said at the return-to-work meeting, “this is what came out”: it was not appropriate for Mr Kehoe to reiterate this comment at the disciplinary hearing. However, I do not find the words spoken by Mr Kehoe (and whether or not accompanied by the alleged gesture) constituted conduct of a sexual nature within the meaning of s 14(A)(7)(a)(ii) of the Acts, given the context within which the words were said. Therefore I find the Complainant was not sexually harassed, within the meaning of the Acts, on 24 January 2023.

In line with the findings of the Labour Court in Cork County VEC v Hurley (EDA 24/2011), it is necessary that a discriminatory act occurred within the cognisable period in order for an event or events occurring outside of that period to be considered as part of a continuum or regime of discrimination and consequently within the jurisdiction of the WRC under the Acts. Having determined that that the Complainant was not the subject of discriminatory treatment i.e., sexual harassment, in the period 17 January 2023 to 16 July 2023, I therefore have no jurisdiction to consider the discriminatory treatment on grounds of gender and family status alleged to have occurred prior to 17 January 2023.

Complaint of Victimisation

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment. It appears that the protected act or acts that the Complainant is relying on as falling under s 74(2) of the Acts are: “(a) a complaint of discrimination made by the employee to the employer . . . (f) an employee having opposed by lawful means an act which is unlawful under this Act . . . . ”

It is the Complainant’s case that within days of making a formal complaint of bullying in August 2021, she was accused of a serious GDPR breach and was sent threatening communications in that regard. She contends that this was an act of victimisation for having raised the complaint. Further, she contends that her formal complaint was not investigated until April/June 2022, despite repeated requests to progress matters and notwithstanding that she had been certified as fit to engage in an investigation into her complaint. The Complainant contends that this delay in commencing the bullying investigation was a further act of victimisation for having raised a complaint. The Complainant submits that she was further victimised when the Respondent cancelled her death in service policy on 3 May 2022. The Complainant also contends that the Respondent victimised her by instigating disciplinary action against her for an alleged breach of the social media policy and an alleged misrepresentation on her CV. It was submitted by the Respondent that the Complainant never complained of unlawful discrimination prior to her referring a complaint to the WRC, but rather bullying. It was common case the complaint of bullying was investigated by an external consultant and the complaint was not upheld. The Respondent further submits that, in any event, the complaint of victimisation is out of time.

The Complainant elected to have her complaint in relation to the lawfulness of her dismissal heard under the Unfair Dismissals Act 1977. I find, as the last alleged act of victimisation (i.e., notice of intention to commence a disciplinary investigation) occurred on 7 October 2022, the complaint of victimisation falls outside the cognisable period (i.e., 17 January 2023 to 16 July 2023). The Complainant did not make an application to extend the time period as provided for under s 77(5)(b) of the Acts.

I have found that the Complainant was not the subject of discriminatory treatment or victimisation within the cognisable period for this complaint (i.e., 17 January 2023 to 16 July 2023). In these circumstances, I find the Respondent did not discriminate unlawfully against the Complainant or victimise the Complainant within the meaning of the Acts.

CA-00057734-005 -  Employment Equality Act, 1998

This complaint was withdrawn.

CA-00057734-001 -  Unfair Dismissals Act, 1977

RELEVANT LAW

The Unfair Dismissal Act 1977 (as amended) (“the 1977 Act”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the 1977 Act provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the 1977 Act provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee . . . .”

Section 6(6) of the 1977 Act provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

In Frizelle v New Ross Credit Union [1997] IEHC 137, Flood J stated that in cases of misconduct “the actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee”.

Section 6(7) of the 1977 Act provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so— (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

In Hennessy v Read & Write Shop Ltd (UD 192/1978) the Employment Appeals Tribunal described ‘the test of reasonableness’ and applied it to: (i) the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the complainant and (ii) the employer’s conclusion following such enquiry that the complainant should be dismissed.

FINDINGS

It is the Respondent’s case that the Complainant was fairly dismissed on grounds of gross misconduct for a breach of the social media policy and for misrepresenting her qualifications on her CV. The Complainant acknowledged making the comments on social media but submitted that the comments were of a general nature referring only to her “lived experience” and that the comments did not directly refer to the Respondent. The Complainant accepted the Respondent had the right to investigate any comments which they suspected may breach the social media policy, but she did not accept that the sanction of dismissal was proportionate. The Complainant submitted that she posted content as early as March 2021 but she was not sanctioned for this. The Complainant contends that the Respondent resurrected the issue of a misrepresentation on her CV (an issue she thought was disposed of in August 2021) to bolster its chances of dismissing her. The Complainant further contends that the disciplinary process was unfair. Specifically, the Complainant submits that the decision to appoint Mr Kehoe as the disciplinary manager given the history between the parties deprived her of a fair hearing.

It was common case:

·        The Complainant was invited to participate in a disciplinary investigation in relation to: (i) a breach of the social media policy by posting derogatory comments on social media platforms relating to the company, it employees and associates; and (ii) misrepresentation of qualifications to gain employment with the Respondent resulting in a breach of trust.

·        Terms of Reference were agreed for the disciplinary investigation.

·        Mr Perrot conducted the investigation (he was not involved in any previous matters concerning the Complainant).

·        Mr Kehoe decided to hold a disciplinary hearing on the basis of the findings of the disciplinary investigation.

·        Mr Kehoe conducted the disciplinary hearing (he had previous dealings with the Complainant with respect to her bullying complaint).

·        The Complainant was represented by a person of her choice at the disciplinary hearing.

·        Following the disciplinary hearing, Mr Kehoe decided to dismiss the Complainant on grounds of gross misconduct.

·        The Complainant was afforded an opportunity to appeal the decision to dismiss her.

·        The grounds of her appeal were confined to the substantive decision to dismiss and the Complainant did not raise any procedural/due process concerns in the written appeal.

·        The Complainant was represented by a person of her choice at the appeal hearing.

·        An external consultant conducted the appeal hearing.

·        The decision to dismiss was upheld on appeal.

All documents pertaining to the disciplinary process including the appeal outcome were opened to the hearing.

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the Respondent in this case to show that there were substantial grounds justifying the Complainant’s dismissal. It is not for me to determine the guilt or innocence of the Complainant or substitute my own judgment for that of the Respondent. Rather, I must apply the standard of ‘reasonable employer’. This requires a determination of the range of responses which a reasonable and prudent employer could have taken having regard to the nature of the case and then a consideration as to whether the Respondent’s actions and decision lay within that range (Governor and Company of Bank of Ireland v James Reilly [2015] IEHC 241; Pacelli v Irish Distillers Ltd UD571/2001; Bunyan v United Dominions Trust (Ireland) Ltd UD 66/1980; McGee v Peamount Hospital UD 136/1984; Looney & Co Ltd v Looney UD 843/1984).

Substantive Fairness

Having reviewed the testimony of the parties and the documentary evidence opened during the hearing, I am satisfied that the reaction of the Respondent and the sanction of dismissal imposed in this case lay within the range of reasonable responses of a reasonable employer and accordingly the decision to dismiss the Complainant was substantively fair. The evidence undoubtedly demonstrates that the Complainant, over a protracted period, intentionally posted derogatory content which clearly referenced the company, its employees, and associates, in a flagrant breach of the company social media policy, notwithstanding repeated warnings to desist in such conduct. I accept the Respondent’s submission that the Complainant’s defence that she was making general comments “lack[s] any semblance of credibility”. The Complainant accepted in cross-examination that she misrepresented her qualifications on her CV and that the Respondent was entitled to rely on her CV as presented. The Complainant did not provide any evidence that it was an honest mistake, notwithstanding the opportunity to do so when the issue first arose in 2021 or at the disciplinary hearing and the disciplinary appeal hearing. I accept the Respondent’s submission that the Complainant’s defence, that the job did not require such a qualification, “entirely misses the point”.

Procedural Fairness

(i)               Appointment of Mr Keogh to chair the disciplinary hearing:

It was common case that Mr Kehoe, as acting CEO, had earlier informal dealings with the Complainant with respect to her complaint of bullying. I note that the company, a small business, had incurred the expense of an external consultant (to investigate the bullying complaint) and legal expenses (in relation to the GDPR issue), and on this basis and on grounds of necessity it decided to appoint Mr Kehoe to conduct the disciplinary hearing. However, I also note the contents of an email sent from Mr Kehoe to the Complainant dated 8 April 2022 in which Mr Kehoe made his position clear regarding the accusations levelled at him by the Complainant. In light of that email, I agree with the Complainant that Mr Kehoe should not have conducted the disciplinary hearing. However, the Complainant did not raise the appointment of Mr Kehoe as the disciplinary manager as a ground of appeal. Further, I am satisfied that this procedural deficit was remedied by the de novo appeal hearing which was conducted by an independent external consultant.

(ii)              Delay in dealing with the Misrepresentation on the Complainant’s CV:

I note that the misrepresentation on the Complainant’s CV is an issue which first arose in August 2021, but yet was not dealt with as a disciplinary issue until October 2022. The Respondent submitted that it regarded the issue as a disciplinary matter when it became known to it in August 2021 but it did not alert the Complainant to this until October 2022, having been advised not to do so given the Complainant was on sick leave. I am of the view there was nothing to preclude the Respondent from ascertaining the Complainant’s fitness to engage in a disciplinary investigation or hearing notwithstanding her absence on sick leave (it did this twice with respect to the bullying investigation), once the bullying complaint had been investigated (which was June 2022); however, I also note that the Complainant emailed the Respondent on 7 April 2022 to state the following: “As per the WRC, my GP’s medical cert supersedes any doctors “opinion” that doesn’t know me or the state my mental and physical health . . . .” I further note that the issue of the delay in dealing with the misrepresentation on the CV as a disciplinary matter was not cited as a ground of appeal by the Complainant. On balance and considering all the circumstances in the round, I am satisfied that the delay in dealing with the misrepresentation on the CV as a disciplinary matter is not in and of itself enough to render the Complainant’s dismissal unfair.

In summary, I find the complaint under the Unfair Dismissals Act, 1977 - 2015 is not well-founded.

CA-00057734-002  -  Employment Equality Act, 1998

I find the Complainant was not the subject of discriminatory treatment or victimisation within the cognisable period for this complaint. I therefore decide the claim of discrimination and the claim of victimisation is not well-founded.

CA-00057734-005 -  Employment Equality Act, 1998

This complaint was withdrawn.

CA-00057734-001 -  Unfair Dismissals Act, 1977

I decide the complaint of unfair dismissal is not well-founded.

Discrimination. Sexual harassment. Victimisation. Dismissal.