Complainant

Respondent

Parties

Sasa  Grujic

Bright Side Bars Co Ltd Cinnamon Restaurant

Representatives

Justyna Kowalska

William Wall, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00058986-001

23/09/2023

The complaint arises under the Employment Equality Acts.

Initially there was a lack of clarity about the precise nature of the alleged breaches of the Act. In the course of the hearing, and following an adjournment to allow the complainant to reflect on this point, he identifies four components to the complaint of discrimination.

1.       The email of January which only came to his attention in July

2.       Defects in the conduct of the investigation

3.       Victimisation

4.       The entire process of investigation and discipline

This gives rise to a number of preliminary issues.

In respect of item 1 the preliminary issue relates to whether the complaint has been made within the time limits. If his becoming aware of it in July is the operative date, then it is, if the publication date is, then it is not, unless a case is made out that it forms part of a continuum of discriminatory conduct..

In relation to the other complaints it is whether the complainant has made out a prima facie case of discrimination, sufficient to shift the burden of proof to the respondent. 

Submissions were heard from both parties on these issues and following an adjournment to consider them I advised that the requirement to establish a prima facie case had not been established sufficient to shift the burden of proof, and that evidence would be heard from the complainant on the substantive matters.

The complainant gave evidence on oath.

He was employed by Cinnamon as a Chef de Partie since August 2021. In November 2021

He was offered pay increase due to change in responsibilities in his role, which he was happy to accept. It is his understanding that he was a good employee as he was given more responsibilities after such a short time working at Cinnamon. he was not subject to any disciplinary process, there was no official complaint made against him on any grounds, his working relationship with rest of the team was very good until the Christmas Party in December 2022.

On December 20th 2022 at a Christmas staff party he approached a work colleague and asked her "How is your night? Are you having fun, or you are depressed?"  She reacted badly to his comments and slapped him in the face. The complainant left the event and went home.

The following day he submitted a complaint to HR stating that they all had had a few drinks, were having fun, talking, joking and his co-worker unexpectedly slapped him in the face. he really didn’t know why.

He says he felt insulted. He also reported it to the Gardaí as ‘his corporeality has been violated’.

 He visited his GP on the 29.12.2022 and was certified unfit for work for an indefinite period due to work related stress from 27.12.2022.

On January 6th he was advised that a full investigation into his complaint lodged on the 21st of December 2022 was conducted and that the co-worker would be subject to disciplinary process in line with company disciplinary procedures. He was surprised as there was no meeting held with him in connection with the investigation of his complaint.

He was certified fit to return to work on January 28th. On January 30th he was invited to an  investigation meeting in connection with his co-worker’s complaint against him.

The complaint related to ‘alleged inappropriate and aggressive behaviour, calling her names, shouting in her face, making her feel intimidated and threatened’.

On January 31st the investigation meeting took place at which he was questioned about alleged inappropriate and aggressive behaviour. He was provided with statements from the complainant in the matter and a wetness but refused to accept these statements as valid proof as they did not include information as to. who actually wrote the statements.

The investigating officer called someone for advice but insisted that this was his last chance to tell his side of the story. She repeated that several  times during the rest of the meeting.

A second investigation meeting took place on February 7th, and management confirmed authenticity of statements and as evidence he was provided with. He was questioned  about the events at the Christmas Party and re-stated what had happened.

He  also wanted to say a few words about the complainant, but the investigator would not allow him to do so. No decision was made on this meeting.

This led to a disciplinary hearing  which took place on February 17th.  He was referred to the handbook and advised that this is personal harassment. Again, he explained that it was not his intention to harass anyone.  It was never his intention to make her feel uncomfortable and he did not understand why he was subject to disciplinary if there was no clear allegations, statements and sentence referred through the whole process.

Further correspondence followed on the minutes and on March 2nd he was issued with a written warning.

This greatly upset him  and he visited his GP resulting in treatment being prescribe. He remained unfit for work for an  indefinite period due work-related stress.

On his return to work in early April he submitted an appeal which was to be heard on April 17th. In due course the appeal decision was to vary the original decision and the  sanction was reduced to an oral warning for six months.

On July 13th he became aware of an email that had been sent by the company owner to staff in January advising female employees who may be the subject of unacceptable conduct by him to report the matter to the Garda.

This email is evidence of discrimination on the grounds of gender and victimisation for reporting his initial complaint.  His has failed to demonstrate the duty of care and protect him and his health during his employment with Cinnamon. he have been discriminated and victimised.

On July 16th he submitted a formal grievance to HR claiming that he was found guilty of conduct he did not commit, specifically referring to the above email in January.  It is direct discrimination if the company director tells other workers to treat another worker less well than other people.

He felt victimised because he have made a complaint against another employee and as a result of which the Company Director took female employee side and made him guilty of misconduct without giving him the opportunity to defend myself.

He resigned on July 28th as he felt discriminated against, disrespected, victimised and had his mental health adversely affected . Two days later he received an email from the Director with a reply to his grievance and invitation to reconsider his resignation.

He replied stating that “I am not in position to reconsider his resignation as the whole disciplinary process and the delay to acknowledge his grievance in relation to the same had a huge impact on his mental health.

he don't trust the Company's intention to resolve the matter fairly. "

On August 4th he left the company.

Since the beginning of the process, this process was not impartial and everyone who took part in it was warned and instructed how the proceedings were to end. The email sent by the Company Director shortly after he made his grievance and reported his fellow employee to  the Garda proves that the purpose of the entire process was to punish him for the original Garda report.

It is incomprehensible how a company director can side with one employee to expose another and baselessly accuse him of sexual harassment. He  has been discriminated on the base of gender, and not given fair opportunity to defend himself.

He  was physically attacked by another staff member and no support was offered to him during the whole process. he had to be punished no matter what he would say or prove.

Discrimination on the 'gender ground' happens where there is less favourable treatment of one person compared to another, because one is a woman, and the other is a man. An employee is said to be directly discriminated against if they are treated less favourably than another employee is treated, has been treated or would be treated, in a comparable situation on any of the 9 grounds as outlined in the Employment Equality Acts 1998 to 2015.

It is also direct discrimination if a manager tells a worker to treat another worker less well than other people. Indirect discrimination is when someone is treated less well than other people-he have been subject to that treatment during the whole disciplinary process against him.

The complainant also relied on case EDA 1017, of which details were provided.

The Company and management team has committed the behaviour as defined in that case as the complainant has been discriminated on the gender grounds.

An employer is legally responsible for harassment suffered by employees in the course of their employment unless they took reasonably practicable steps to prevent it, to reverse the effects of it and to prevent its recurrence.

The complainant has been made guilty of sexual harassment by Company Director and personal harassment as outcome of disciplinary process but during the entire process at no stage he was referred to relevant policies or procedures rather than invited to disciplinary hearing for allegations of personal harassment.

The anxiety and stress caused by the treatment at work led to sickness and stress, and leaving his job to seek work elsewhere as he was humiliated on front of the whole team and could not trust the company any longer.

Due to the entire process, he was exposed at financial lost: he had to avail of counselling sessions to process the unfounded accusations against him and due to sickness, he could not work. He has lost over €5,000.

The respondent raises a number of preliminary issues

Bright Side Bars Co Ltd have a premises on Ranelagh Road Dublin 6. The complainant was employed for a period of two years as a commis chef at the restaurant.

He refers one matter to the Workplace Relations Commissions (WRC) under the Employment Equality Act 1998 where he alleges that he was discriminated against on the grounds of his gender. He further alleges victimisation and that he was further treated unlawfully by discriminating against him in ‘other’. He alleges that the latest date upon which the discrimination occurred was July 13th,  2023. The respondent strongly denies this claim.

Section 41(6) of the Workplace Relations Act 2015 (the Act of 2015) provides the following.

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The respondent relies on s.6 of the Employment Equality Act 1998 as amended (the Act of 1998) and the definition of discrimination (text submitted).

The complainant submits that the last day upon which the respondent allegedly discriminated against him was July 13th, 2023. From the complainant’s own submission, he says that he received an email from a colleague on July 13th, 2023, which enclosed an email that had been sent by the owner on January 10th, 2023.

It is submitted by the respondent that the date upon which he can rely on in relation to the email sent by Mr Doyle was January 10th and not July 13th, 2023, when he became aware of the email. It is wholly denied that the respondent discriminated against the complainant on July 13th, 2023, as the act of receiving an email containing information relating to January 10th,  2023, does not constitute discrimination on the grounds of gender.

If the complainant wishes to rely on the date of July 13th,  2023, he must prove that a continuum occurred in relation to discrimination and show that the act to which he alleges inside the cognisable period is related to the act outside the cognisable period. The act within the cognisable period must be an act of discrimination and not just merely connect to an alleged act to which he refers. The law on a continuum has been addressed in a number of cases before the Labour Court.

The respondent refers the Court to County Cork VEC & Ms. Ann Hurley  where the Appellant (Ms Hurley) appealed a decision of an Equality Officer in relation to her claim that the employer continued to victimise her after her complaint was referred to the Equality Officer. The appellant was unsuccessful in applications for employment made by her in March 2007, June 2007, July 2007, August 2007, September 2007, January 2008, May 2008 and July 2008.

The respondent in that case objected to complaints made prior to December 2007asthesecomplaintsweremadeoutsidethetimelimitsprescribedunder theAct.

Moreover, they further referred that complaints made in May and July 2008 were not referred to in the initial case before the Equality Officer, could not be now raised before the Court. The Court suggested to the parties that it would deal with the times limits in the first instance of which the parties agreed. The Court referred to sections 77 subs (5)(a) & (6)(a) and in so doing referred to previous case law. It is worth quoting the full passage.

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending  over a period, and so treated as done, at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant

This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act”.

The Court referred to Robertson v Bexley Community Centre [2003] IRLR 434 where again a complainant referred to a matter occurring after he referred his complaint to the Employment Tribunal. The Court commenting on a passage from Auld LJ confirmed that section 77(5)

“deals with a situation in which there are a series of separate acts or omissions which while not forming part of the regime, rule, practice or principle as sufficiently connected as to constitute a continuum”.

The Court further referred to Arthur v London Eastern Railway Ltd, [2007] IRLR 58where Mummery J referred to the three-month time limit provided for under section 48 of the Employment Rights Act 1996. He states:

“The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4)by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them”.

The Court in referring to the above passage stated the following.

It is clear for the passage just quoted that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. 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.

Taking the above case law into consideration, for the section to apply to a continuing act of victimisation or discrimination within the time limit provided, it must relate to an act of discrimination or victimisation outside the time limit.  For the complainant is alleging that upon him discovering that where an email existed from January 10th, 2023, and him becoming aware of it, that constitutes discrimination. This is wholly denied by the respondent.

The act of receiving notification of an email dated January 10th,  2023 wherein is refers that any of the women who have suffered sexual advances from the complainant should notify the Gardai immediately.

For the complainant to show that his compliant relates to discrimination he must show that in receiving the email allegedly on the 13th of July 2023 he was treated less favourably than another, on one of the grounds as set out in s.8 of the Act of 1998, based upon his gender.

In essence, does an act where a complaint before the WRC that an employee receiving an email, relating to the complainant where it advises employees of a company that if they have suffered any sexual harassment to go to An Garda Siochana constitute discrimination.

It is respectfully submitted that, upon receiving information on July 13th,  allegedly does not constitute discrimination and that the matter is not properly before the Commission in that regard as the last date upon which the complainant can rely where an act of discrimination may have occurred was March 2nd, 2023, where the complainant was notified that he was to receive a written warning.

For him to be properly before the Commission he would have had to lodge his complainant to the WRC on or before September 2nd, 2023. It is submitted by the complainant in his written submissions that he allegedly became aware of the email of January 10th  2023 on July 13th 2023.

He had a number of options open to him, he was entitled to refer a grievance to the respondent under the policy already used in submitting his first grievance on December 22nd  2022  which he did.   However, he never followed up with the respondent. It is further noted in the respondent’s correspondence of July 30th,  that the respondent offered to have a third party hear the grievance. The complainant of even date replied in the negative.

Having become aware of the issue of which it is denied that it constitutes discrimination, the complainant was open to immediately referring the matter to the WRC.  It was open to him to have the matter referred to the WRC within the whole month of August 2023. He failed or neglected to do so. The respondent refers to the email sent by the complainant on July 16th, 2023 wherein he states.

“I must inform you that I will be making a complaint to WRC under Equality Acts as I was subject to direct discrimination by being treated less well than other people on purpose.

It is evidentially clear that the complainant’s intention was to refer this matter to the WRC as early as July 16th, when he allegedly says he became aware of the email of January 10th, 2023.

He failed or neglected to do so. He does not make reference to this matter in his written submissions. It is noted that he is represented in this matter and his representative has not made out any argument that may constitute reasonable cause as to why this matter would fall for adjudication under s.41(8) of the Act 2015.

The Respondent submits that in the case of Cementation Skanska v Carroll, DWT0338, the Labour Court articulated the test pertaining to time limits by stating:

"It is the Court's view that in considering if reasonable cause exists, it is for the Appellant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Appellant at the material time. The Appellant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time."

It is submitted that; the complainant has not made out an argument was to how his case may fall under s.41(8) of the Act of 2015. The respondent respectfully submits that the WRC has no jurisdiction to hear the matter currently before them and for the above reasons the respondent asks that the matter be dismissed.

On the day of the hearing, submissions were heard from both parties on the preliminary issue of whether the complaint had been made within the required time limits.

The complaint was received by the WRC on September 23rd, 2023. In the absence of meeting the criteria for extending the time limits (the Cementation Skanska ‘Explain and Excuse test’ referred to above) this allows for consideration of any alleged breaches within the previous six months, i.e. back to March, 24th.

The core events giving rise to the complaint took place at a staff Christmas party on December 20th, 2022, at which an incident occurred between the complainant and a co-worker, who then made a complaint against the complainant (and he made one against her).

This led to a workplace investigation which culminated in a written warning to the complainant on February 17th. (Separately, the co-worker involved was also the subject of a disciplinary sanction for her part in the incident.)

Unhelpfully, it also resulted in a report of the incident to the Gardaí.

The complainant appealed, and this was delayed for various reasons, and again he was not happy with the outcome of the appeal and made it the subject of a grievance. Following the outcome of this process, he resigned on July 28th, and this took effect on August 4th.

As can be seen from the submissions above, the complainant became aware of an email on July 13th  which had been sent to the respondent’s employees on January 10th.

While the complainant raised issues about the conduct of the investigation and other issues, this complaint has been made under the Employment Equality Act and has to be addressed by reference to the criteria grounding a breach of that Act. The receipt of the January email is the only connection to the earlier events.

A full hearing of all issues took place, and evidence on oath was taken from the complainant.

However, at the hearing a decision on the preliminary point of time limits was reserved on the basis that, should it be decided in the complainant’s favour a decision would issue on the substantive complaint. Otherwise, a decision that the complaint was not made within the time limits would decide the matter.

That primary complaint related to whether the process of investigation and discipline had been discriminatory, and the hearing proceeded on those points for the purpose of the order in which evidence was taken on the procedural basis that a prima facie case had not been made out.

In any event that only arises if the complainant succeeds on the preliminary point, to which I now turn.

Consideration of that gives rise to a number of initial considerations. The first is whether the act of receiving an email, on these specific facts can be a breach of the Act on the gender ground.

If it is, then the second is then whether it can connect to earlier alleged breaches of the Act to bring them also within jurisdiction.

And while it may be unnecessary to take a further step until those first two are decided there is the further issue of whether even those earlier alleged breaches meet the standard of proof necessary to succeed under the Act.

It is important to note, as the respondent pointed out, that the initial process of investigation and discipline was not related to equality or gender issues, and that the other party (a woman) had likewise been the subject of disciplinary proceedings.

The complainant gave unpersuasive evidence that the only reason that disciplinary actions was triggered against him was because he was a man.

This is demonstrably untrue, as is clear from the fact that the other party in the incident, a woman, also faced disciplinary proceedings. The complainant appeared to suggest in evidence that any action taken against him would be discriminatory because he was a man.

The complainant made some other weak and unpersuasive points about differences in how the process was conducted as between the parties.

His particular point about the email of January 10th (which he only saw in July) was that it was evidence of prejudice against him.

In passing, and for reasons that are not relevant to the complaint or my decision, that email was something of an error of judgement and should never have been sent. However, whether it was a breach of the Equality Act either when it was sent or, when it was discovered is another matter entirely.

And even if it was evidence of some form of pre-judgement, it is far from clear how it also represented less favourable treatment under the Act, on the facts of this case.

In her summing up the complainant’s representative stated that the purpose of the case was to challenge the fact of a pre-determined outcome in the disciplinary process and that the January email was evidence of this.

While it is unnecessary to say so, the evidence before me does not support that assertion and, more critically that goes nowhere near the point of grounding a complaint under the Employment Equality Act.

In any event, it does not meet the requirements of any of the case law in relation to a continuum of breaches set out in the respondent’s submission above.

On these facts, becoming aware of the existence of an email is not an act of less favourable treatment under the Act, it has only the most tenuous connection to the earlier events, which in turn do not ground any breach of the Act, and therefore the entire basis of the complaint is without merit.

In conclusion and referring to the four points set out in the Background section, none of them represent a breach of the Equality Acts.

The  email of January which only came to the complainant‘s attention in July is specifically not a breach, nor does it provide any continuity to the earlier alleged breached.

These, in turn are not breaches of the Acts, viz the alleged defects in the investigation of his complaint against his co-worker, the alleged victimisation, and the process of investigation and discipline.

The complaint is not well founded.

Complainant

Respondent

Parties

Sasa  Grujic

Bright Side Bars Co Ltd Cinnamon Restaurant

Representatives

Justyna Kowalska

William Wall, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00058986-001

23/09/2023

The complaint arises under the Employment Equality Acts.

Initially there was a lack of clarity about the precise nature of the alleged breaches of the Act. In the course of the hearing, and following an adjournment to allow the complainant to reflect on this point, he identifies four components to the complaint of discrimination.

1.       The email of January which only came to his attention in July

2.       Defects in the conduct of the investigation

3.       Victimisation

4.       The entire process of investigation and discipline

This gives rise to a number of preliminary issues.

In respect of item 1 the preliminary issue relates to whether the complaint has been made within the time limits. If his becoming aware of it in July is the operative date, then it is, if the publication date is, then it is not, unless a case is made out that it forms part of a continuum of discriminatory conduct..

In relation to the other complaints it is whether the complainant has made out a prima facie case of discrimination, sufficient to shift the burden of proof to the respondent. 

Submissions were heard from both parties on these issues and following an adjournment to consider them I advised that the requirement to establish a prima facie case had not been established sufficient to shift the burden of proof, and that evidence would be heard from the complainant on the substantive matters.

The complainant gave evidence on oath.

He was employed by Cinnamon as a Chef de Partie since August 2021. In November 2021

He was offered pay increase due to change in responsibilities in his role, which he was happy to accept. It is his understanding that he was a good employee as he was given more responsibilities after such a short time working at Cinnamon. he was not subject to any disciplinary process, there was no official complaint made against him on any grounds, his working relationship with rest of the team was very good until the Christmas Party in December 2022.

On December 20th 2022 at a Christmas staff party he approached a work colleague and asked her "How is your night? Are you having fun, or you are depressed?"  She reacted badly to his comments and slapped him in the face. The complainant left the event and went home.

The following day he submitted a complaint to HR stating that they all had had a few drinks, were having fun, talking, joking and his co-worker unexpectedly slapped him in the face. he really didn’t know why.

He says he felt insulted. He also reported it to the Gardaí as ‘his corporeality has been violated’.

 He visited his GP on the 29.12.2022 and was certified unfit for work for an indefinite period due to work related stress from 27.12.2022.

On January 6th he was advised that a full investigation into his complaint lodged on the 21st of December 2022 was conducted and that the co-worker would be subject to disciplinary process in line with company disciplinary procedures. He was surprised as there was no meeting held with him in connection with the investigation of his complaint.

He was certified fit to return to work on January 28th. On January 30th he was invited to an  investigation meeting in connection with his co-worker’s complaint against him.

The complaint related to ‘alleged inappropriate and aggressive behaviour, calling her names, shouting in her face, making her feel intimidated and threatened’.

On January 31st the investigation meeting took place at which he was questioned about alleged inappropriate and aggressive behaviour. He was provided with statements from the complainant in the matter and a wetness but refused to accept these statements as valid proof as they did not include information as to. who actually wrote the statements.

The investigating officer called someone for advice but insisted that this was his last chance to tell his side of the story. She repeated that several  times during the rest of the meeting.

A second investigation meeting took place on February 7th, and management confirmed authenticity of statements and as evidence he was provided with. He was questioned  about the events at the Christmas Party and re-stated what had happened.

He  also wanted to say a few words about the complainant, but the investigator would not allow him to do so. No decision was made on this meeting.

This led to a disciplinary hearing  which took place on February 17th.  He was referred to the handbook and advised that this is personal harassment. Again, he explained that it was not his intention to harass anyone.  It was never his intention to make her feel uncomfortable and he did not understand why he was subject to disciplinary if there was no clear allegations, statements and sentence referred through the whole process.

Further correspondence followed on the minutes and on March 2nd he was issued with a written warning.

This greatly upset him  and he visited his GP resulting in treatment being prescribe. He remained unfit for work for an  indefinite period due work-related stress.

On his return to work in early April he submitted an appeal which was to be heard on April 17th. In due course the appeal decision was to vary the original decision and the  sanction was reduced to an oral warning for six months.

On July 13th he became aware of an email that had been sent by the company owner to staff in January advising female employees who may be the subject of unacceptable conduct by him to report the matter to the Garda.

This email is evidence of discrimination on the grounds of gender and victimisation for reporting his initial complaint.  His has failed to demonstrate the duty of care and protect him and his health during his employment with Cinnamon. he have been discriminated and victimised.

On July 16th he submitted a formal grievance to HR claiming that he was found guilty of conduct he did not commit, specifically referring to the above email in January.  It is direct discrimination if the company director tells other workers to treat another worker less well than other people.

He felt victimised because he have made a complaint against another employee and as a result of which the Company Director took female employee side and made him guilty of misconduct without giving him the opportunity to defend myself.

He resigned on July 28th as he felt discriminated against, disrespected, victimised and had his mental health adversely affected . Two days later he received an email from the Director with a reply to his grievance and invitation to reconsider his resignation.

He replied stating that “I am not in position to reconsider his resignation as the whole disciplinary process and the delay to acknowledge his grievance in relation to the same had a huge impact on his mental health.

he don't trust the Company's intention to resolve the matter fairly. "

On August 4th he left the company.

Since the beginning of the process, this process was not impartial and everyone who took part in it was warned and instructed how the proceedings were to end. The email sent by the Company Director shortly after he made his grievance and reported his fellow employee to  the Garda proves that the purpose of the entire process was to punish him for the original Garda report.

It is incomprehensible how a company director can side with one employee to expose another and baselessly accuse him of sexual harassment. He  has been discriminated on the base of gender, and not given fair opportunity to defend himself.

He  was physically attacked by another staff member and no support was offered to him during the whole process. he had to be punished no matter what he would say or prove.

Discrimination on the 'gender ground' happens where there is less favourable treatment of one person compared to another, because one is a woman, and the other is a man. An employee is said to be directly discriminated against if they are treated less favourably than another employee is treated, has been treated or would be treated, in a comparable situation on any of the 9 grounds as outlined in the Employment Equality Acts 1998 to 2015.

It is also direct discrimination if a manager tells a worker to treat another worker less well than other people. Indirect discrimination is when someone is treated less well than other people-he have been subject to that treatment during the whole disciplinary process against him.

The complainant also relied on case EDA 1017, of which details were provided.

The Company and management team has committed the behaviour as defined in that case as the complainant has been discriminated on the gender grounds.

An employer is legally responsible for harassment suffered by employees in the course of their employment unless they took reasonably practicable steps to prevent it, to reverse the effects of it and to prevent its recurrence.

The complainant has been made guilty of sexual harassment by Company Director and personal harassment as outcome of disciplinary process but during the entire process at no stage he was referred to relevant policies or procedures rather than invited to disciplinary hearing for allegations of personal harassment.

The anxiety and stress caused by the treatment at work led to sickness and stress, and leaving his job to seek work elsewhere as he was humiliated on front of the whole team and could not trust the company any longer.

Due to the entire process, he was exposed at financial lost: he had to avail of counselling sessions to process the unfounded accusations against him and due to sickness, he could not work. He has lost over €5,000.

The respondent raises a number of preliminary issues

Bright Side Bars Co Ltd have a premises on Ranelagh Road Dublin 6. The complainant was employed for a period of two years as a commis chef at the restaurant.

He refers one matter to the Workplace Relations Commissions (WRC) under the Employment Equality Act 1998 where he alleges that he was discriminated against on the grounds of his gender. He further alleges victimisation and that he was further treated unlawfully by discriminating against him in ‘other’. He alleges that the latest date upon which the discrimination occurred was July 13th,  2023. The respondent strongly denies this claim.

Section 41(6) of the Workplace Relations Act 2015 (the Act of 2015) provides the following.

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The respondent relies on s.6 of the Employment Equality Act 1998 as amended (the Act of 1998) and the definition of discrimination (text submitted).

The complainant submits that the last day upon which the respondent allegedly discriminated against him was July 13th, 2023. From the complainant’s own submission, he says that he received an email from a colleague on July 13th, 2023, which enclosed an email that had been sent by the owner on January 10th, 2023.

It is submitted by the respondent that the date upon which he can rely on in relation to the email sent by Mr Doyle was January 10th and not July 13th, 2023, when he became aware of the email. It is wholly denied that the respondent discriminated against the complainant on July 13th, 2023, as the act of receiving an email containing information relating to January 10th,  2023, does not constitute discrimination on the grounds of gender.

If the complainant wishes to rely on the date of July 13th,  2023, he must prove that a continuum occurred in relation to discrimination and show that the act to which he alleges inside the cognisable period is related to the act outside the cognisable period. The act within the cognisable period must be an act of discrimination and not just merely connect to an alleged act to which he refers. The law on a continuum has been addressed in a number of cases before the Labour Court.

The respondent refers the Court to County Cork VEC & Ms. Ann Hurley  where the Appellant (Ms Hurley) appealed a decision of an Equality Officer in relation to her claim that the employer continued to victimise her after her complaint was referred to the Equality Officer. The appellant was unsuccessful in applications for employment made by her in March 2007, June 2007, July 2007, August 2007, September 2007, January 2008, May 2008 and July 2008.

The respondent in that case objected to complaints made prior to December 2007asthesecomplaintsweremadeoutsidethetimelimitsprescribedunder theAct.

Moreover, they further referred that complaints made in May and July 2008 were not referred to in the initial case before the Equality Officer, could not be now raised before the Court. The Court suggested to the parties that it would deal with the times limits in the first instance of which the parties agreed. The Court referred to sections 77 subs (5)(a) & (6)(a) and in so doing referred to previous case law. It is worth quoting the full passage.

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending  over a period, and so treated as done, at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant

This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act”.

The Court referred to Robertson v Bexley Community Centre [2003] IRLR 434 where again a complainant referred to a matter occurring after he referred his complaint to the Employment Tribunal. The Court commenting on a passage from Auld LJ confirmed that section 77(5)

“deals with a situation in which there are a series of separate acts or omissions which while not forming part of the regime, rule, practice or principle as sufficiently connected as to constitute a continuum”.

The Court further referred to Arthur v London Eastern Railway Ltd, [2007] IRLR 58where Mummery J referred to the three-month time limit provided for under section 48 of the Employment Rights Act 1996. He states:

“The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4)by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them”.

The Court in referring to the above passage stated the following.

It is clear for the passage just quoted that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. 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.

Taking the above case law into consideration, for the section to apply to a continuing act of victimisation or discrimination within the time limit provided, it must relate to an act of discrimination or victimisation outside the time limit.  For the complainant is alleging that upon him discovering that where an email existed from January 10th, 2023, and him becoming aware of it, that constitutes discrimination. This is wholly denied by the respondent.

The act of receiving notification of an email dated January 10th,  2023 wherein is refers that any of the women who have suffered sexual advances from the complainant should notify the Gardai immediately.

For the complainant to show that his compliant relates to discrimination he must show that in receiving the email allegedly on the 13th of July 2023 he was treated less favourably than another, on one of the grounds as set out in s.8 of the Act of 1998, based upon his gender.

In essence, does an act where a complaint before the WRC that an employee receiving an email, relating to the complainant where it advises employees of a company that if they have suffered any sexual harassment to go to An Garda Siochana constitute discrimination.

It is respectfully submitted that, upon receiving information on July 13th,  allegedly does not constitute discrimination and that the matter is not properly before the Commission in that regard as the last date upon which the complainant can rely where an act of discrimination may have occurred was March 2nd, 2023, where the complainant was notified that he was to receive a written warning.

For him to be properly before the Commission he would have had to lodge his complainant to the WRC on or before September 2nd, 2023. It is submitted by the complainant in his written submissions that he allegedly became aware of the email of January 10th  2023 on July 13th 2023.

He had a number of options open to him, he was entitled to refer a grievance to the respondent under the policy already used in submitting his first grievance on December 22nd  2022  which he did.   However, he never followed up with the respondent. It is further noted in the respondent’s correspondence of July 30th,  that the respondent offered to have a third party hear the grievance. The complainant of even date replied in the negative.

Having become aware of the issue of which it is denied that it constitutes discrimination, the complainant was open to immediately referring the matter to the WRC.  It was open to him to have the matter referred to the WRC within the whole month of August 2023. He failed or neglected to do so. The respondent refers to the email sent by the complainant on July 16th, 2023 wherein he states.

“I must inform you that I will be making a complaint to WRC under Equality Acts as I was subject to direct discrimination by being treated less well than other people on purpose.

It is evidentially clear that the complainant’s intention was to refer this matter to the WRC as early as July 16th, when he allegedly says he became aware of the email of January 10th, 2023.

He failed or neglected to do so. He does not make reference to this matter in his written submissions. It is noted that he is represented in this matter and his representative has not made out any argument that may constitute reasonable cause as to why this matter would fall for adjudication under s.41(8) of the Act 2015.

The Respondent submits that in the case of Cementation Skanska v Carroll, DWT0338, the Labour Court articulated the test pertaining to time limits by stating:

"It is the Court's view that in considering if reasonable cause exists, it is for the Appellant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Appellant at the material time. The Appellant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time."

It is submitted that; the complainant has not made out an argument was to how his case may fall under s.41(8) of the Act of 2015. The respondent respectfully submits that the WRC has no jurisdiction to hear the matter currently before them and for the above reasons the respondent asks that the matter be dismissed.

On the day of the hearing, submissions were heard from both parties on the preliminary issue of whether the complaint had been made within the required time limits.

The complaint was received by the WRC on September 23rd, 2023. In the absence of meeting the criteria for extending the time limits (the Cementation Skanska ‘Explain and Excuse test’ referred to above) this allows for consideration of any alleged breaches within the previous six months, i.e. back to March, 24th.

The core events giving rise to the complaint took place at a staff Christmas party on December 20th, 2022, at which an incident occurred between the complainant and a co-worker, who then made a complaint against the complainant (and he made one against her).

This led to a workplace investigation which culminated in a written warning to the complainant on February 17th. (Separately, the co-worker involved was also the subject of a disciplinary sanction for her part in the incident.)

Unhelpfully, it also resulted in a report of the incident to the Gardaí.

The complainant appealed, and this was delayed for various reasons, and again he was not happy with the outcome of the appeal and made it the subject of a grievance. Following the outcome of this process, he resigned on July 28th, and this took effect on August 4th.

As can be seen from the submissions above, the complainant became aware of an email on July 13th  which had been sent to the respondent’s employees on January 10th.

While the complainant raised issues about the conduct of the investigation and other issues, this complaint has been made under the Employment Equality Act and has to be addressed by reference to the criteria grounding a breach of that Act. The receipt of the January email is the only connection to the earlier events.

A full hearing of all issues took place, and evidence on oath was taken from the complainant.

However, at the hearing a decision on the preliminary point of time limits was reserved on the basis that, should it be decided in the complainant’s favour a decision would issue on the substantive complaint. Otherwise, a decision that the complaint was not made within the time limits would decide the matter.

That primary complaint related to whether the process of investigation and discipline had been discriminatory, and the hearing proceeded on those points for the purpose of the order in which evidence was taken on the procedural basis that a prima facie case had not been made out.

In any event that only arises if the complainant succeeds on the preliminary point, to which I now turn.

Consideration of that gives rise to a number of initial considerations. The first is whether the act of receiving an email, on these specific facts can be a breach of the Act on the gender ground.

If it is, then the second is then whether it can connect to earlier alleged breaches of the Act to bring them also within jurisdiction.

And while it may be unnecessary to take a further step until those first two are decided there is the further issue of whether even those earlier alleged breaches meet the standard of proof necessary to succeed under the Act.

It is important to note, as the respondent pointed out, that the initial process of investigation and discipline was not related to equality or gender issues, and that the other party (a woman) had likewise been the subject of disciplinary proceedings.

The complainant gave unpersuasive evidence that the only reason that disciplinary actions was triggered against him was because he was a man.

This is demonstrably untrue, as is clear from the fact that the other party in the incident, a woman, also faced disciplinary proceedings. The complainant appeared to suggest in evidence that any action taken against him would be discriminatory because he was a man.

The complainant made some other weak and unpersuasive points about differences in how the process was conducted as between the parties.

His particular point about the email of January 10th (which he only saw in July) was that it was evidence of prejudice against him.

In passing, and for reasons that are not relevant to the complaint or my decision, that email was something of an error of judgement and should never have been sent. However, whether it was a breach of the Equality Act either when it was sent or, when it was discovered is another matter entirely.

And even if it was evidence of some form of pre-judgement, it is far from clear how it also represented less favourable treatment under the Act, on the facts of this case.

In her summing up the complainant’s representative stated that the purpose of the case was to challenge the fact of a pre-determined outcome in the disciplinary process and that the January email was evidence of this.

While it is unnecessary to say so, the evidence before me does not support that assertion and, more critically that goes nowhere near the point of grounding a complaint under the Employment Equality Act.

In any event, it does not meet the requirements of any of the case law in relation to a continuum of breaches set out in the respondent’s submission above.

On these facts, becoming aware of the existence of an email is not an act of less favourable treatment under the Act, it has only the most tenuous connection to the earlier events, which in turn do not ground any breach of the Act, and therefore the entire basis of the complaint is without merit.

In conclusion and referring to the four points set out in the Background section, none of them represent a breach of the Equality Acts.

The  email of January which only came to the complainant‘s attention in July is specifically not a breach, nor does it provide any continuity to the earlier alleged breached.

These, in turn are not breaches of the Acts, viz the alleged defects in the investigation of his complaint against his co-worker, the alleged victimisation, and the process of investigation and discipline.

The complaint is not well founded.

For the reasons set out above Complaint CA-00058986 is not well founded.

Equality

Equality