Complainant

Respondent

Parties

John  McKenna

Hamilton Park Care Centre Limited Hamilton Park Care Facility

Representatives

Barry O’Mahony B.L. instructed by Sandra McALeer Solicitors

Rosemary Mallon B.L. instructed by Maguire McClafferty, Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045802-001

24/08/2021

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

CA-00045802-003

24/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00045802-007

24/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00045802-008

24/08/2021

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

CA-00054150-001

15/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054150-003

15/12/2022

There were originally seven complaints made in this case.

Five of these were listed as CA-000045802, submitted on August 24th, 2021, and were as follows.

CA-000045802-001 under the Terms of Employment Information Act, 1994, CA-000045802-002 under the Industrial Relations Act 1969, CA-00045802-003 under the Employment Equality Act, 1998 and CA-000045802-007 and 008 which were both withdrawn.

Tow further complaints were submitted on December 15th, 2022, listed under CA-00054150-001, again under the Employment Equality Act,  1998 and finally  under CA-00054150-03 under the Minimum Notice and Terms of Employment Act, 1973.

(I have decided to anonymise the subject of the allegations by the complainant as they have not been investigated or proved, and they are of a sensitive nature).

Preliminary Issue; Industrial Relations Act

It is submitted that the WRC does indeed have jurisdiction to hear the complaint as the complainant had exhausted all internal procedures open to him before referring the matter to the WRC. In fact, on four occasions the respondent explicitly told him in writing to take a claim to the WRC if he feels the respondents response to his internal complaint was unreasonable.

This was also made clear on the WRC complaint form and the respondent did not object to the investigation of matters by the WRC prior to the hearing in the usual way, that being by submitted its objection with 21 days of the notification of the complaint.

Various letters were before the WRC hearing on February 13th,  2024. These are summarised as follows.

The complainant wrote to the respondent through his solicitor on January 27th, 2021 and the 12th February 2021 setting out his complaints. A response was received on February 16th, 2021, which simply denies any wrongdoing while also complaining that insufficient information was provided. A further letter was sent on the Complainants behalf on February 22nd, 2021. This letter provided further information regarding the matter and asked that an independent third party be appointed to investigate matters.

 In response, February 2021, David Pratt 25th, Respondent  MD, states inter alia as follows:

“While you have provided us with only an outline of your allegations, we have carried out sufficient enquiries. We are satisfied that there is no basis whatsoever to your claims that he was bullied and sexually harassed by [Ms A] or any other employee. …

In the circumstances we cannot see how any independent investigation can be of benefit…If you feel this is unreasonable, you well know that the path is clear for you to bring a claim before the Workplace Relations Commission.”

It is clearly evident from the above, that the respondent had no intention of investigating the matter further. Clearly therefore, on any reasonable interpretation of the correspondence between the parties, the complainant had at that point exhausted all internal avenues open to him.

The complainant made further attempts to convince the respondent to investigate matters in compliance with SI674 of 2020. This was done by letter dated the 26th February 2021, in response to which the Respondent, by letter dated the 1st March 2021 stated inter alia as follows:

“We do not feel John was treated unfairly in any way. We are quite certain that he was never bullied or harassed…We would also like to make it clear that if John wants to prove us wrong, he will have to give evidence to the Workplace Relations Commission and convince the Adjudicator of his position”

 A response was issued on behalf of the complainant on the same date, that being the 1st March 2021, which stated inter alia as follows:

Furthermore, the documentation provide does not include any documentation relating to the ‘sufficient inquiries’ which, in your letter of the 25th February 2021 you explicitly state were made regarding our clients complaint of bullying and sexual harassment. If such enquires were made, please provide all documentation relating said enquiries by the 5th March 2021.

It is indeed regrettable that you have absolutely failed in your statutory, contractual and moral duty to take our clients complaints of sexual harassment and bullying, and the other statutory complaints mentioned, seriously. While you state in your letter of the 1st March 2021 that ‘If John has any issues with us, he will be free to raise them with us’, you do not seem to appreciate, that our client has done just that, he has engaged solicitors to raise the issues he has with you on his behalf. Yet you have in every piece of correspondences issued, dismissed our clients complaints out of hand, with blanket denials, and no adequate enquiry or investigation whatsoever. We have asked you to appoint a suitably qualified external third party investigator to address the bullying and sexual harassment complaint, which you may wish to note is standard practice in such situations, yet you refused to consider this possibility, or indeed to suggest any alternative. We have raised issues which our client has with you on a number of occasions now, and on each occasion you utterly failed in your legal and moral duties as an employer.

In response, the respondent, by letter dated the 2nd March 2021 stated inter alia as follows:

“You also criticise the absence of any documents supporting the enquires we carried out into the allegations of bullying and of statutory breaches. On that point I say that not all enquires need to be documented in order to be legitimate and meaningful. We repeat that the investigations we carried out established to our satisfaction that the claims you have made – vague as they are- cannot be validated. And again, if you have criticism of our record-keeping, then we suggest that it be ventilated in a forum such as the WRC and not a tedious back and forth correspondence…

Don’t get us wrong we would like to avoid the WRC but not at the cost ofpaying out any money for claims which are quite frankly bogus.”

The complainant wrote again to the respondent by letter dated the 25th August 2021, again raising the issues on behalf of the complainant, expressly stating as follows:

“We are now offering you one final opportunity to outline what steps you intend to take to address the issues as set out above and previously”

David Pratt responded by letter of the same date stating inter alia as follows:

“Lest you be in any doubt as to how we intend to approach this issue , your Client will have to give evidence to the Workplace Relations Commission and convince the Adjudicator he was mistreated in any way whatsoever”

It is clear from the foregoing, that the complainant was explicitly told on four separate occasions that the respondent was not going to deal with his complaints any further, and that if he wanted to progress matters, he would have to refer matters to the WRC. The complainant had therefore, exhausted all internal avenues open to him prior to referring the matter to the WRC.

Furthermore, the complaint referred the complainant to the WRC is in the specific context of bullying and harassment procedures. The requirement on the complainant in such circumstances is to exhaust the internal bullying and harassment procedures, which he did. In response to his complaint, he was told on four occasion that he could refer the matter to the WRC rather than engage in ‘tedious back and forth correspondence’. Further still, the ‘enquiry’ which the respondent allegedly conducted into the allegations was very obviously in breach of SI674 2020. The purpose of the referral to the WRC under the Industrial Relations Acts is inter alia to deal with that very point.

It is respectfully submitted that there is no basis refusing jurisdiction to investigating the complainants Industrial Relations Complaint, a complaint made specifically on the grounds of a bullying and harassment procedures, rather than in respect of the grievance procedure. It is further submitted that to refuse to consider and adjudicate on the complaint would be an error in fact and in law.

It is further submitted, that the fact that the complainant is no longer in the employment of the Respondent, or that he has lodged other complaints does not entitle the WRC to refuse jurisdiction to hear and adjudicate upon the complainant’s Industrial Relations Complaint.

It is submitted that the complainant exhausted all internal procedures available to him, and was told by the respondent on four occasions that he could refer the matter to the WRC.

Substantive Issues

The Complaints pursuant to the Safety Health and Welfare at Work Act, 2005 CA- 00045802-007 and the Organisation of Working Time Act 1997 CA-00045802-008 are withdrawn.

The complainant commenced employment with the respondent around November 10th,  2007 as a chef, on €1500 per week. He got on well for a period of time, but began to experience difficulty in and alleges that from in or around 2016 a colleague (his manager, hereafter Ms A) began sexually harassing him.

This harassment took the form of touching to which he took exception, but the perpetrator persisted even though in expressed his dissatisfaction with this behaviour, The complainant’s wife confronted Ms A about her behaviour and this resulted in a persistent campaign of bullying and harassment against the complainant which continued for a number of years, ultimately leading to the complainant being certified as unfit for work due to work related stress in or around November 2021.

Over a number of years, the complainant was subjected to complaints about his work. In October 2020, and was subjected to further complaints. He was offered every second weekend off and was happy with this, as he had worked every weekend for a number of years.

Unfortunately, due to the sick leave absence of a colleague in November 2020 he was required to work at very short notice.

When the complainant was working, he was monitored and micromanaged constantly by Ms A.

 On one particular date in or around October 2020 there was an incident arising from the service of food to an individual.  The following day, the complainant was called into Ms A’s office and she shouted at him. He felt intimidated and upset by her  conduct which was a further example of type of behaviour to which the complainant was exposed on a daily basis.

In November 2022 the complainant was told by Ms A that as Covid was over, he was now required to work every weekend and that therefore his wages would be unilaterally cut. She claimed that the complainant owed the company money, and therefore rostered his for excessive hours as a result.

After the meeting the complainant was upset, resulting in elevated blood pressure. He had suffered a heart attack 5 years previously and was concerned for his health.

He consulted a solicitor regarding the conduct of his employer who wrote to the respondent on January 27th, 2021,  summarising issues of concern, and explicitly making a complaint of bullying and harassment against Ms A on his behalf. The letter explicitly requested that an independent third party be appointed to conduct an investigation into the matter. A further reminder letter was sent on 12th February 2021.

David Pratt, the respondent MD, responded on 16th February 2021.

He claimsthatapassingreferenceismadetoabullyingand harassment complaint, despiteacomplaint ofbullying and harassment being lodged in theletterJanuary 27th,2021.The request toappoint an independent investigator isnot addressed atall.He takes offence at thepossibilityof a WRCinspection,as wellasstatinghe has sent acopyof the letter ofthe27th January2021to the thenDirector General oftheWRC.

Upon receipt of that letter, the complainant solicitor wrote again onFebruary 22nd,  2021. saying that an explicit complaint of bullying and harassment had been made against a specified member of staff. Furthermore, some further detailsofthecomplaint weresetout.

In response, by letter dated the 25th February 2021, David Pratt stated:

'While you have provided us with only an outline of your allegations, we have carried out sufficient inquiries. We are satisfied that there is no basis whatsoever to your claims that he was bullied and sexually harassed by [Ms A] or by any other employee. WE also believe that the claims of breaches. of employment statutes are untrue and cannot be substantiated. In the circumstances, we cannot see how any independent investigation can be of benefit.

This demonstrates a lack of knowledge of the contractual and statutory obligations of the employer, his lack of understanding of elements of natural justice and fair procedures, and his unwillingness to take any steps to address the complaints raised on behalf of the complainant.

In response, , the solicitors for the complainant pointed out on February 26th  that the respondent could not have carried out 'sufficient inquiries' into the matter. The respondent was referred to its responsibilities pursuant to SI 674/2020.

David Pratt issued a further response dated the 1'1 March 2021.

'We do not feel John was treated unfairly in any way. We are quite certain that he was never bullied or harassed We deny that at any stage, Hamilton Park ever deprived him of any of his statutory entitlements as you allege. WE would also like to make it clear that if John wants to prove us wrong, he will have to give evidence to the Workplace Relations Commission and convince the Adjudication Officer of his position. '

While it was apparent from this that the Respondent had no intention of investigating the complaints, the complainant's solicitor made a further attempt to have the complaint investigated and wrote again on March 1st, 2021, requesting all documentation related to the 'sufficient inquiries' allegedlycarriedoutbytheRespondent

A response dated March 2nd, 2021, was issued by the respondent. With regard to the request for documentation regarding what the Respondents claims was 'sufficient inquiries' into the Complainants complaints David Pratt responded as follows:

'You also criticise the absence of any documents supporting the enquiries we carried out onto the allegations of bulling and of statutory breaches. On that point may I say that not all enquiries need to be documented in order to be legitimate and meaningful. We repeat that the investigations we carried out established to our satisfaction that the claims you have made - vague as they are- cannot be validated And again, if you have criticism of our record-keeping, then we suggest that it be ventilated in a forum such as the WRC and not in tedious back-and-forth correspondence.

This confirms that no adequate investigation could possibly have been carried out into the allegations and it is obvious that the respondent had no idea whatsoever how to deal with a complaint of bullying and harassment.

The complainant was threatened with disciplinary proceedings unless he attended a 'welfare meeting' in April 2021 despite being on certified sick leave.                     On the 25th August 2021 the solicitors for the complainant wrote again to the respondent stating as follows:

RE - Bullying, harassment, sexual harassment penalisation, breaches of the Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act 1994 in respect of John McKenna

Dear David,

We refer to the above matter and to our previous correspondent in relation to same. We note that to date you have consistently failed to adequately deal with the matters raised previously, specifically you have failed to address the sexual harassment which our client was subjected to under your employment, nor have you addressed the complaints of bullying a harassment made by our client. Further still you have failed to address the breaches of the Organisation of Working time Act, 1997, the Terms a/Employment (information) Act 1994, the Employment Equality Act 1998 and the Safety Health and Welfare at Work Act,

2005. We are offering you one final opportunity to outline what steps you intend to take to address the issues as set out above and as set out previously.

We await hearing from you before the close of business on the 27th August 2021 setting out in detail how you intend to address the matters raised, failing which we will prosecute the necessary proceedings with regard to the above.

In response, on the same daythe respondent stated as follows:

'We feel that we have - in several letters sent to you earlier this year- made our position clear. We deny in the most strenuous of terms any allegation that your client was bullied or harassed, sexually or otherwise. We also deny that our client was in breach of the Organisation of Working Time Act 1997, the Terms a/Employment (information) Act, 1994. The Employment Equality Act, 1998 of the Safety, Health, and Welfare at Work Act 2005.

Lest you be in any doubt as to how we intend to approach this issue, your client will have to give evidence to the Workplace Relations Commission and convince the Adjudicator that he was mistreated in any way whatsoever. In other words, there will be no compromise agreement or out-of-court settlement. We shall be defending our position in full.

Once again, it is with regret that we note you have decided to dust-down these bogus claims after a break of a few months. '

Given that the complainant provided the respondent with ample opportunity to address the complaint, the complainant lodged a number of complaints to the WRC on 24th August 2021.

CA-00045802-001 Term of Employment (Information) Act, 1994

The complainant has been provided with two documents referred to as contracts during his employment. Each of these documents is defective for the purposes of the section 3 of the Terms of Employment (information) Act, 1994. In particular the documents do not contain certain information as required by section 3 of the act and the regulations made thereunder:

That the complainant may seek a statement pursuant to s.23 of the National Minimum Wage Act, 2000 contrary to s.3(l)(ga), Pay reference period for the purposes of the National Minimum Wage Act 2000,             the rate or method of calculation of the employee's remuneration (2014 contract), Details of the PRSA which the Respondent is required to provide access to, A reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.,

Details of times and duration of rest periods and breaks referred to in SI I, 12 and 13 of the Organisation of Working Time Act, 1997, pursuant to SI. 49 of 1998 Terms of Employment (Additional Information) Order 1998. 

The importance of providing stamens of terms in compliance with the act was highlighted by the Labour Court in Felix Guerrero v. Merchants Arch Company Limited (DWTJ88) where it stated:

"The court finds that the Act imposes an obligation on an employer to provide a worker with basic information regarding the terms of their employment. The requirement of section 3 of the act are not complex matters. A simple attention to detail would enable any reasonable person to comply with its terms. A failure to do so therefore requires a clear and understandable explanation as to why a worker has not been provided with such basic information about the terms under which s/he is employed "

No such explanation has been provided in this case. The respondent relies on its assertion that breaches were of a technical nature only and argues that the complainant suffered no adverse consequence arising out of its misfeasance.

The Court finds no merit in that argument. The Court finds that the statute imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with section 3 of the Act. The Respondent failed to do so in this case

This is in keeping with the decision of the European Court of Justice in case C-350/99 Lange v George Schuenemann GmbH where it was held that there was an obligation on employers to notify employees concerned of:

"All aspects of the contract of employment relationship which are, by virtue of their nature essential terms'

It is submitted therefore that the respondent was in breach of the above act and there is no merit in the argument that the defects in the document are trivial or technical in nature should that argument be proffered by the Respondent. 

CA-00045802-002 Industrial Relations Issues

The complainant relies on the same arguments as set out above for this complaint .  Specifically, despite being made aware of SI 674/2020, the respondent entirely ignored its obligations to investigate the matters complained of.  The complaint of the complainant can also be considered a grievance. In that regard the Respondent has breach SI I46/2000 in the same way in which it has breached SI 674/2020

CA-00045802-003 Employment Equality Complaint

The complainant was sexually harassed by Ms A on an ongoing basis from in or around 2016 as set out above. Section 85A requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the basis of gender, that being in this instance harassment and or sexual harassment. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. Section 85A states as follows;

'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.’

To meet the criteria set out above the complainant must establish on the balance of probabilities that the relevant conduct took place, the conduct includes the Respondents refusal to investigate the matter once it was reported to it, and that this conduct fell

within the definition of harassment and or sexual harassment as set out in section. Harassment or sexual harassment is considered to be discrimination on the basis of gender in relation to the victims' conditions of employment as per. (Detailed submissions were made on the Act). The test above is a subjective test. The complainant will outline that the conduct was unwelcome, and moreover that it has the purpose and or effect of violating the Complainants dignity.

Furthermore, when the complainant asked Ms A, both directly and through his wife to stop sexually harassing him, her response was to ridicule and publicly mock the Complainant, making comments which themselves constitute harassment and sexual harassment, following which she engaged on a campaign of victimisation and harassment lasting a number of years and eventually resulting in the complainant being certified as unfit to work due to stress.

When the complainant made a complaint with regard to the conduct of Ms A namely that he was being harassed and or sexually harassed by her, the response of the Respondent was to refuse to investigate that matter, and to declare, without any, or any adequate process at all, that the complainants of the complainant were baseless. The Respondents conduct in so doing is a fresh occurrence of the

discrimination complained of the most recent occurrence of a refusal to investigate matters took place on the 25th August 2021 and before that on the 2nd March 2021

The complainant, through his solicitor, made a complaint of inter alia sexual harassment to his employer by letter dated January 27th,  2021. He named the alleged perpetrator of the harassment and sexual harassment, and requested that the independent external investigator be appointed at that time. He repeated the complaint in writing on a number of occasions between January 2021 and August 2021 and asked that the Complaint be investigated.

On each and every occasion where the complainant raised the Complaint, the response of the Respondent was to dismiss the complaint out of hand, to refuse to investigate the complaint and to claim that they had in fact investigated the Complaint, despite this claim being patently false. In that regard it is submitted that the Respondent was in breach of section 8(1)(b) of the Employment Equality Act, 1998

The Respondent refused to take any steps to ensure that the complainant was not discriminated against by the complainant in terms of his conditions of employment. In A Hospital v. An Appellant DEE029, the Labour Court was of the view that the Respondents failure to take any steps to protect the appellant when informed of the allegation of sexual harassment, but where the Appellant did not inform her employer of the identity of the perpetrator, was a breach of section 8(1) of the act, and was discriminatory against the Appellant.

"The Court is of the view that there are three periods in this case which deserve separate examination                          by                                     the                                                                               Court: 

           I.          The period before October 1999, when sexual harassment was alleged to have taken place.

         II.          The period between October 1999, and June 2000, when a serious complaint of sexual harassment was made without identifying the harasser.

       III.          The period post 7th June 2000, when the appellant named the alleged harasser.(ii): The situation during this period was different ...

There still remains a general duty on the employer under section 8 (1) (b) to provide conditions of employment free from discrimination. It is the opinion of the Court that the employer, during this period did not provide conditions of employment to the employee, which was free from discrimination.

In the opinion of the Court, during this period i.e. between October 1999, and 7th June 2000, the employer had a duty, on being informed of the harassment, to put in place such procedures as would enable the appellant to avail of working conditions free from discrimination. The Court is of the view that the employer, in the circumstances of this particular case, in particular the very serious nature of the allegations and the appellant's history, should have taken proactive measures including the following: -

•contacted the gardai

•contacted the appellant's Union official

•spoken to co-workers to seek to establish the truth or otherwise of the allegations

•transferred the appellant to another working area

•explained its Anti-Bullying/Harassment Policy to her and provided her with a copy of the policy.

By its failure to take these steps, the employer failed to provide the employee with working conditions free from discrimination and accordingly was in breach of its duty to the appellant under section 8 (1) of the Act ...

The Court finds that the employer was in breach of its duty under section 8(1) of the Act and discriminated against the employee in contravention of this section. Accordingly, the Court is satisfied that the appropriate form of redress is an award of compensation to the appellant, and measures the amount of compensation which is fair and reasonable in all the circumstances at €10,000. '

In the case referred to above, the employer did in fact carry out a thorough investigation once the name of the perpetrator was provided. However, in the current circumstances, the respondent repeatedly refused to investigate the matter at all.

In the current circumstances, upon a formal complaint being made to the respondent its response was to repeatedly refuse to investigate the matter, or to put in place any protective measures whatsoever, rather it referred to the allegations as inter a/is 'bogus', and as such it has discriminated against the complainant on the basis of gender pursuant.

Section 15 of the Employment Equality Act 1998 deals with vicarious liability, (Text  of statute omitted).

In the current circumstances, the respondent did not take any steps to prevent the sexual harassment which occurred. It had no policy dealing with sexual harassment. Moreover, when the sexual harassment was reported to it, its response was not to seek to investigate the matter, but to deny out of hand that it took place without any recourse to its requirement to fully investigate matters and to protect the Complainant.

In Atkinson v Carty [2005] E.L.R I, the employer argued that although there was no policy in place, they operated an open-door policy, which permitted any person, including the Plaintiff in that case to approach the employer with a complaint. Judge Delahunt did not accept that argument stating as follows:

"It is not sufficient for the Defendants to plead that no amount of paper compliance would have helped in case of the Plaintiff. The failure off the Defendants to have in place adequate procedures renders them liable any by reason of their failure to fulfil their statutory obligations they are responsible and cannot plead immunity from same simply because the Plaintiff failed to make a complaint"

It is submitted therefore that the Respondent cannot rely on the provisions of section 14(2) or section 15 of the act in its defence as no steps whatsoever were taken to prevent the conduct of which the complainant complains.

In EH v Named Company Trading as a Cab Company DEC-E2006-26, the Director of Equality Investigations made the maximum award permissible under the act, that being two years remuneration, as well as directing the Respondent to put in place a sexual harassment procedure given the serious nature of the sexual harassment which occurred, and the employer's complete failure to address it.

The conduct of the Respondent upon the complainant being presented to it was nothing short of appalling. As such, it is submitted that the complainant is entitled to the highest level of compensation permissible under the act, and respectfully requests an award of that nature be made in his favour.

The conduct of the respondent towards the complainant has been most unreasonable, aggressive, and in breach of various statutes and regulations. The Respondent has had numerous opportunities to mend it's had, however rather than do so, it has repeatedly refused to investigate the matters raised by or on behalf of the Complainant. Rather to engage with the Complainants complaints, the Respondent has referred to the matters raised by the complainant in a most aggressive manner, referring to the complaints raised as 'bogus' without conducting any meaningful investigation at all.

With regards to the terms of employment claim, it is clear that the documents provided by the Respondent are deficient. Given the conduct of the Respondent, the complainant seeks the maximum level of compensation permissible under the act.

With regards to the Industrial Relations Act complaint, the respondent repeatedly refused to investigate the matters raised over a significant period of time. As such, the complainant respectfully asks that it is recommended that the Respondent should carry a full independent investigation, to be undertaken by a suitably qualified external third party. Furthermore, the complainant requests that it is recommended that the Respondent pay to the complainant significant levels of compensation given the Respondents conduct towards the Complainant.

With regard to the Employment Equality complaint, it is clearly evident that the Respondent has entirely abandoned its obligations to the Complainant. The complainant has been the victim of discrimination on the basis of gender, and this discrimination has been amplified and repeated by the Respondent in its reaction to the Complaint made by the complainant on a number of occasions between January 2021 and August 2021. As such it is submitted that the complainant is entitled to the highest levels of compensation permissible under the act.

Evidence of John McKenna.

The complainant gave his evidence on oath.

The complainant referred to an incident in October 2020 following which he have to go home suffering from high blood pressure. After that his solicitor sent a letter on January the 21st and again on the 12th of February and they eventually got a letter of reply on February the 16th.

In reference to the letter stand on June the 6th 2021 from the respondent regarding treatment he did not recollect it.

On February the 22nd he was invited to a welfare meeting but did not attend he rang the respondent to say he would go but emailed on March the 8th indicating that he would not.

He described the other correspondence and proposed meetings which passed between the parties. He got a letter on February 9th but did not respond and simply sent his medical certificate and likewise on other dates. When asked why he did not attend any of these meetings he said he was too stressed to attend the welfare meeting.

His stress continued during his absence to May 2022 and he attributed this to the bullying and the hurtful things said by Ms A. On July 4th he submitted a medical certificate that said he would not return to work and which suggested early retirement.

He disagreed with the option of early retirement although at that point he accepts he was not able to work.  However, he thought he might be able to work after he had surgery.

Regarding the letter on August  8th he confirmed receipt but did not respond to it and also did not respond to a further letter on August the 25th as he was not well. In explaining this he referred to the letter sent by her solicitor in April saying that he would not attend.

The complainant was cross examined by Ms Mallon B.L..

He confirmed that he had had a hip operation in January 2023 and that he had recovered and was now fit to return to work.  He confirmed that he was still in receipt of disability welfare payments accepted that this not justified by his state of .health

He was asked why he did not reply in May 2021 to the  patient registration form he was sent and did not reply and was asked why. He did not answer.

He confirmed that he did attend for an occupational health assessment on foot of a letter from the respondent on May 17th, 2021. It was also put to him that the respondent made an offer on May 31st to facilitate him with attendance at an orthopedic surgeon for an injection with transport to the appointment.

The witness said he did not want the injection but confirmed that he did not tell the respondent that he did not wish to avail of its offer.

Counsel asked whether he thought that failure to respond was reasonable and he did not disagree that his failure to respond was disappointing.

He was asked why he did not contradict the occupational health doctor’s conclusions regarding his fitness or health and the witness did not answer.

Counsel referred to a letter from the respondent on February 25th, 2022, which included an offer to discuss reasonable accommodation on return to work. The witness said that he was stressed due to the upcoming consultation and he could not attend it because of the level of pain and stress he was experiencing.

He accepted that it was reasonable of the respondent to request such a meeting and that it had been unreasonable of him not to attend.

Regarding the medical opinion dated October 7th, 2021, in which the consultant opined (with the agreement of the GP)  that it was ‘most unlikely that he would ever return to the position he was employed as a chef’, Counsel asked why he had not challenged that view as he now does, and whether he thought it reasonable for the respondent to conclude on the basis of the medical opinion that he would not return. The witness could not answer.

In respect of his refusal to attend the meeting on foot of invitation issues on February 25th and March 23rd which was to discuss reasonable accommodation he said that he could not attend due to the level of pain and stress he was experiencing.

The witness was asked whether any of the medical certification covered his non-attendance at such meetings he agreed that they did not (although a letter from his solicitor asserted that it did). It referred only to ‘work/college’.

The witness stated that he was aware that he was certified fit to attend a welfare meeting, and did not contradict the certification nor did he advise that he  would not attend. He accepted, when put to him, that this action was unreasonable.

In relation to correspondence sent on August 25th, 2022, in which he was put on notice of the possible termination of his employment, he initially answered that he did not know this was being considered but then accepted that it meant that he might lose his job. But when asked why he did not show up at the meeting arranged for August 31st, again he attributed this to stress.

He accepted that he did not make any contact with the respondent and that he simply ignored the letter. When asked why he did not appeal the termination of his employment he stated that he ‘could not be bothered’.

The complainant made an oral submission at the hearing on the preliminary point and rested on the fact that the complainant had made submitted formal grievance and had not availed of the internal procedures.

The respondent said that the complainant had completely failed to engage throughout the entire process. 

He cannot simply assert that he would have been fit to return to work following his surgery when the medical opinion in the possession of the respondent clearly expressed the opposite view.

The respondent made numerous attempts in the exercise of its contractual entitlement to engage with its employee in relation to welfare meetings, Occupational Health appointments, and in due course in relation to the possible termination of his employment and he simply declined to respond.

In correspondence to the complainant solicitor on April 11th, the respondent solicitor pointed out that the respondent ‘like any good employer must meet with [the complainant] to discuss these issues’ and that ‘this is an entirely normal function of Human Resource Management to ensure that our client’s employees are supported during such periods of absence’.

Some preliminary issues arose in relation to two of the above complaints. It is relevant to note that the complainant’s employment terminated on July 1st, 2022, and that prior to that he had been on sick leave since November 11th,  2020.

The first preliminary issue relates to CA-00045802-003 under the Employment Equality Act, 1998.

This complaint was received by the WRC on August 24th, 2021, and as noted the complainant had not been at work since November 2020. Therefore a question arises as to whether there had been an incidence of discrimination within the cognisable period, which would run, in the ordinary way from March  25th 2021.

The second related to CA-00054150-001 and the Industrial Relations Act case and whether the complainant met the requirement to have processed his grievance to finality within the workplace.

These issues are addressed first.

The complainant relies heavily in respect of both matters on a letter from his solicitor dated January 27th, 2021, followed up on February 12th; there having been no reply. (The respondent said it received the first letter only on February 15th).

Specifically in relation to the equality complaint it stated ‘this letter is to be regarded as an official complaint of bullying and harassment against [the respondent and a named employee.] and it demanded the appointment of an independent investigator as well as making a range of threats against the respondent, including of a referral to the WRC.

It also relies on the sending of this letter and the respondent’s handling of it as a breach of the Equality Act which brings it within the time limits.

In due course the respondent replied on February 16th and among other points made in that letter it asked for details of the alleged bullying and harassment complaint. The complainant’s solicitor responded on February 22nd and listed a number of allegations and called for an investigator to be appointed.

Few details or dates were provided, one date, November 21st, 2020, related to  a change in the complainant’s shift arrangements and there was an allegation that one of the respondent’s employees had been responsible for a heart attack suffered by the complainant in 2015.

The respondent wrote again on February 25th rejecting the allegations.

The relevance of this correspondence is twofold.

The first is whether the correspondence from the solicitor and the respondent’s replies (and alleged inaction) are capable of being construed as a breach of the Employment Equality Act.

A second question (mainly for the Industrial Relations Act complaint) is whether any (and specifically this) letter from a solicitor can properly be said to trigger a grievance under a workplace Grievance or Bullying and Harassment Policy.

On March 1st the respondent noted in a reply to the solicitor that if the complainant ‘has any issues with us, he will be free to raise them with us. As John is aware that my door is always open’. [sic].

It is also relevant to the complainant’s case whether, in due course the complainant actually utilised the process, sufficient to permit a hearing under the Act at the WRC.

The complainant in his supplementary submission has argued that

 ‘it is clear from the correspondence  that the complainant was explicitly told on four separate occasions that the respondent was not going to deal with his complaints any further, and that if he wanted to progress matters, he would have to refer matters to the WRC. The complainant had therefore, exhausted all internal avenues open to him prior to referring the matter to the WRC.’

This overlooks the respondent’s position that it had not been given any detail of the complaints; on March 1st it was pointing out that the claims that had been made were ‘vague’, so its position was known to the complainant then.

But the question as to whether workplace level procedures have been exhausted is, in any event, subject to objective scrutiny by an Adjudicator.

For example, the complainant’s submission that the respondent’s acquiescence in allowing an Industrial Relations case to be heard by the WRC overrides the important procedural requirement of full processing at the level of the workplace is not correct.

Even where both parties agree to a referral an Adjudicator will still look at how the matter was addressed in the workplace, as might be expected from an organisation called the ‘Workplace Relations’ Commission’.

A case might proceed in a situation where there is clear evidence that an employer refused to process a grievance which had been properly made though its own procedures, but, as will be seen, whether that applies here is a very different matter.

What was described by the complainant’s solicitor as ‘a brief non exhaustive summary of the type of conduct to which our client was subjected’ came only after the respondent had asked for it (a response described by the complainant‘s solicitor as ‘most inappropriate’, whatever that might mean specifically!)

The respondent referred to this in its correspondence of March 25th as an ‘outline’, which confirms the complainant‘s solicitor’s description of it above; ‘a brief non exhaustive summary’.

The following appears in the respondent‘s submission above.

In response, [to the first two items of correspondence from the complainant’s solicitor] by letter dated the 25th February 2021, David Pratt stated:

'While you have provided us with only an outline of your allegations, we have carried out sufficient inquiries. We are satisfied that there is no basis whatsoever to your claims that he was bullied and sexually harassed by [Ms A] or by any other employee. WE also believe that the claims of breaches. of employment statutes are untrue and cannot be substantiated. In the circumstances, we cannot see how any independent investigation can be of benefit.

This demonstrates a lack of knowledge of the contractual and statutory obligations of the employer, his lack of understanding of elements of natural justice and fair procedures, and his unwillingness to take any steps to address the complaints raised on behalf of the complainant.

The alternative view is that this situation is entirely attributable to the failure of the complainant to provide particulars of his complaint through the correct workplace procedures, either then or since. 

In alleging a breach of either SI 674/2020 or SI 146/2000 the author of the complainant’s correspondence appears to overlook that fair procedure is a two-way street, and the subject of any allegation has rights to be provided with detail of any allegations against them in such terms as they can address and respond to them,  and not merely a ‘brief non-exhaustive summary’. (It is too late adding to this information in material for a WRC hearing).

In response, the solicitors for the complainant pointed out on February 26th  that the respondent could not have carried out 'sufficient inquiries' into the matter. The respondent was referred to its responsibilities pursuant to SI 674/2020.

But, in fact it was entirely proper for the respondent to seek such detail and the failure of the complainant at any stage to provide it is very damaging to his position, and not just arising from SI 674/2020.

SI 674/2020, to which the complainant’s solicitor regularly referred, stresses the importance of early intervention, mediation and two stages of Informal Process.

Where this fails it continues (at 4.2.1)

The complainant should make a formal complaint in writing that should be signed and dated. Where  this is not possible a written record should be taken of the complaint by the assigned person and signed by the complainant and dated.

 The  complaint should be confined to precise details of alleged incidents of bullying including their dates and names of witnesses were possible. The complainant and the respondent should be advised of the aims and objectives of the formal process the procedures and approximate ideal time frame involved and the possible outcomes both parties should be assured of support as required throughout the process. etc

It seems unnecessary to add the underlining as the complainant’s failure to understand and comply with these requirements is self-evident on the record.

This language is replicated in the respondent’s Employee Handbook at page 10, and it is very clear. There it states that the complaint must be made by the complainant, i.e. the employee in the context of the Handbook, AND must be in writing AND must contain ‘precise details of actual incidents of bullying’.

The complainant failed to comply with any of these requirements and thereby illustrates how extensively the complainant failed to comply with the very SI on which so much reliance was placed in correspondence.

If there were never such an Instrument the management of the complainant’s case fell well short of what was required from the point of view of how best to advance the interests of the complainant and the processing of his complaint.

It is clear, therefore that the fault lay entirely with the complainant for the failure to get his grievance off the ground, and in particular that he did not provide sufficient detail to trigger a proper investigation. It is not possible to argue that he exhausted the grievance machinery; or even that he made any serious effort to avail of it.

He was even advised to do so by the respondent in its correspondence of March 1st, referred to above, but he did not do so.

I find that the early correspondence submitted on behalf of the complainant was totally inadequate to ground an investigation by the respondent.

Before concluding on this point, there is the matter of whether a grievance may validly be made submitted on behalf of a worker by a solicitor. This is addressed in the comments above about the Employee Handbook.

There is no provision in our workplace grievance machinery for direct access by solicitors to workplace procedures and this may have been another part of SI 146/2000 which passed the complainant’s solicitor by, in the absence of some very rare circumstances that may arise in the disciplinary process only.

The respondent therefore has based its attempts to bring the first of its Equality Act complaints within jurisdiction by its characterisation of the refusal to carry out an investigation as a breach of the Act.

On these facts it is not. The complainant, as an employee is obliged to trigger his rights under the workplace grievance machinery, and to do so in person, or with the assistance of a trade union or work colleague.

The complainant also tried to shoehorn this correspondence into a request for protected measures and relied on  A Hospital v. An Appellant DEE029 and other cases in that regard.

But the complainant was not at work at this point for medical reasons and was unlikely to return any time soon. In any event the failure to implement a grievance process cannot be regarded as failure to apply protected measures in any normal understanding of the term, on these facts.

The complainant also said that he had concerns about having to meet the alleged perpetrator in the course of attending the respondent premises. However, parties to an investigation have no need to come into contact with each other and it would not have been difficult to require the respondent to ensure that this happened.

Accordingly, the arguments advanced by the complainant to bring CA-00045802-003 within jurisdiction are not well founded. The correspondence between the parties, and specifically the failure to conduct an investigation on the basis of the flimsy material submitted to the respondent  does not give rise to a breach of the Employment Equality Acts.

The case under the Industrial Relations Acts falls on the same facts, if for slightly different reasons.

Why the complainant was not advised by his legal advisors to comply with the provisions of SI674/2020 and the Employment Handbook and enter his grievance in the normal way, and to process it in accordance with established procedures is not clear.

The respondent represented the strident correspondence it was receiving as an attempt to force it into a financial settlement with the complainant.

From its first engagement with the respondent the correspondence submitted to the hearing on behalf of the complainant contains some of the most confrontational and belligerent invective I have ever seen submitted to a hearing, and yet it failed completely to address the elementary issue of providing the respondent with prima facie grounds for launching its internal procedures.

This went further, and in my view into very hazardous territory for a complainant representative in taking it upon itself to interpret a medical opinion in such a way as to interfere with the normal operation of the employment contract and obstructing the welfare meeting with the respondent.

Quite how this deteriorating confrontation was perceived as advancing the complainant’s interests is lost on me.

The obligation that fell on the legal advisor was to recommend that the complainant formulate (with its advice if need be) a grievance and submit this in line with well-established industrial relations practice, the relevant Statutory Instruments, and the requirements of fair procedure.

I do note that the complainant is no longer employed by the respondent, but in line with the general jurisdiction of the Labour Court and the Adjudication service this complaint he has utterly failed to meet the requirement to process the complaint at workplace level and it is not open to me to address it.

The second complaint under the Employment Equality Act arises from the termination of the complainant’s employment, (CA-00054150-001)

The process leading to the termination is set out above.

As can be seen, the consistent pattern of the complainant’s lack of engagement with the respondent demonstrates a quite startling level of indifference to the courtesies that might be expected in the circumstances, to say nothing of the obligations imposed on him by his contract of employment.

Again, for reasons that are hard to understand his solicitor argued (on April 8th, 2022) that attending a welfare meeting would be constituted as ‘working time’ and that as such he was medically certified not to attend, and he would not do so.

As already noted, this represents a quite hazardous intrusion into the contractual relationship between an employer and an employee.  While it was baldly asserted on behalf of the complainant  that medical certification of unfitness for work includes welfare meetings, and renewed allegations were made that this represented a further act of discrimination, none of this was helpful to the complainant’s case.

When the respondent solicitor then sought medical certification of unfitness to attend a welfare meeting, the complainant’s solicitor said she would not provide it.

This lack of cooperation by the complainant was embarrassingly exposed in his cross examination in which he was left floundering for explanations for his various failures to engage, (which were not denied,) to respond to correspondence, to attend for consultations, and even to engage with the final steps of the process when he was on notice that termination of his employment was being considered.

The final half dozen paragraphs of the cross examination of the complainant (set out above) make for difficult reading, culminating in his answer to Counsel in relation to the notice of possible termination  that he ‘simply ignored the letter’ and when asked why he did not appeal the termination of his employment he stated, unbelievably, that he ‘could not be bothered’.

I accept that the complainant may not have been in the best of health, but he had the benefit of professional legal advisors who must surely have understood the degree of jeopardy in which his actions placed him and  who could have advised him accordingly.

In the event, his conduct verged on the reckless from the point of view of his continuing in employment.

The medical evidence dated October 7th, 2021, was clear and has already been referred to. It indicated it was ‘most unlikely that he would ever return to the position he was employed as a chef’. It was established in evidence that at no stage, did he ever challenge this, or argue to the contrary.

This led ultimately to the termination of his employment of which not only was he given notice (on August 25th) but he was told in advance the specific criteria that would be applied, based on the medical opinion.

I find the termination to have been exclusively effected on the grounds of incapacity due to ill health and to have been fair.

There are two other complaints under the Terms of Employment (Information) Act 1993 (CA-00045802-001) and the Minimum Notice ad Terms of Employment Act 1973, (CA-00054150-003). The complainant did not receive notice of the termination of employment.

The former relates to certain aspects of his statutory statement which are alleged to be inadequate, and which was not disputed by the respondent. I award him €1,000.00 in respect of the breach.

On the basis of his fifteen years’ service, he was entitled to six weeks’ notice. The complainant stated on the complaint form that he earned €1500.00 per week.

However, the pay slip submitted at the hearing in respect of his final payment shows hourly earnings of €19.37 per hour, or €774.73 per week and I am obliged to treat this as the correct statement of his earnings giving rise to an entitlement of €4,648.80 payment in respect of notice due.

Complaint CA-00045802-001 is well founded and I award the complainant €1,000.00 in respect of the breach of the Terms of Employment (Information) Act 1993.

Complaint CA-00054150-003 is well founded and I award the complainant €4,648.80 in respect of notice payment.

Complaints CA-00045802-002 under the Industrial Relations Act, 1969 is not upheld.

Complaints CA-00045802-003 and CA-00054150-001 under the Employment Equality Acts are not upheld.

Complaints CA-00045802-007 and 008 were withdrawn.

Equality Act, Industrial Relations, procedures