Complainant

Respondent

Parties

Jasmine Olaru

Remo Foods Limited t/a Domino’s Pizza

Representatives

Martin O' Donnell, Morgan Redmond Solicitors, instructing Jason Murray BL.

Hugh Hegarty, MSS

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055581-002

16/03/2023

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

CA-00055581-003

16/03/2023

On 9 February 2022, the Complainant commenced work as Floor Staff for the Respondent. The Complainant earned €11.40 per hour, working approximately 29.5 hours per week. The Complainant’s last day of employment was 24 September 2022. The Complainant submitted her Complaint Form to the Workplace Relations Commission (the “WRC”) on 16 March 2023. The Complainant alleges that she was discriminated against on the grounds of gender and age; harassed; sexually harassed; and victimised contrary to the Employment Equality Act 1998-2015 as amended. The Complainant also alleges that she did not receive her rest breaks in accordance with the Organisation of Working Time Act 1997 as amended. The Respondent refutes the complaints in their entirety.

The Complainant provided detailed written and oral submissions.

In her Complaint Form submitted on 16 March 2023, the Complainant submitted that she was discriminated against on the grounds of gender and age; harassed; sexually harassed; and victimised during her employment. In her written submissions, the Complainant stated that she “suffered a continuum of discrimination throughout her employment”. She submitted that she was discriminated against on the grounds of gender and age; sexually harassed; and victimised during her employment. The Complainant submitted that this discrimination last occurred on 19 September 2022.

The Complainant submitted that she has met the burden of proof pursuant to section 85A of the Employment Equality Act 1998 – 2015 as amended. The Complainant submitted that her evidence is uncontested and as the Respondent failed to provide any witness to rebut her evidence, an inference should be drawn accordingly. The Complainant submitted that as the Respondent’s managers perpetrated and / or witnessed the discrimination and sexual harassment that she was subjected to, it follows that the Respondent was on notice of the same. The Complainant submitted that she was required to sign 9 documents 18 times, during a short meeting on her first day of work on 9 February 2022. The Complainant submitted that the Respondent’s HR audit considers only whether forms have been signed. The Complainant submitted that as a result, the Respondent cannot rely on a statutory defence in this matter.

The Complainant submitted that she was victimised as she was twice clocked out of work without her consent, following her resignation and when she outlined her concerns to her Manager on 19 September 2022.

Finally, the Complainant submitted that she did not receive her breaks in accordance with the Organisation of Working Time Act 1997 as amended and that the Respondent failed to show that breaks were taken. The Complainant further submitted that the break record sheets were not accurate.

The Complainant – Evidence:

The Complainant submitted that she initially worked part-time for the Respondent when she was 18 years old and in her Leaving Cert year. The Complainant submitted that after her Leaving Cert exams, her hours increased and she worked four or five days per week.

CA-00055581-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 – Gender and Age Discrimination; Harassment; Sexual Harassment; and Victimisation:

The Complainant submitted that on her first day of work, she signed a number of documents in approximately 30 minutes. The Complainant submitted that the Manager told her that there was no need for her to read anything. The Complainant submitted that she had not read the Employee Handbook and that she did not know if there was a copy on the premises. The Complainant submitted that she does not know what the Company Safety Statement is or where it is located. The Complainant submitted that she does not know where the first aid box is. The Complainant submitted that she completed an online course concerning manual handling.

The Complainant submitted that she was managed by the Manager and the Deputy Manager. She submitted that there were other shift managers, to whom she reported and who all, in turn, reported to the Manager and Deputy Manager. The Complainant submitted that when she started with the Respondent, there were approximately four to five women working there alongside approximately 30 men. The Complainant submitted that her role involved answering phones, greeting customers and taking orders. She also took pizzas out of the oven, sliced and boxed them.

The Complainant submitted that throughout her employment, she was scared of the Manager. She said that in April 2022, they received a large order for approximately 40 pizzas. She submitted that as the pizzas were sticking to the pizza sheets, he lost his temper, threw pizzas at the wall, kicked the pizza boxes and stormed off. The Complainant submitted that one of the pizza boxes connected with her leg and marked her leg as a result. She also submitted that she saw her Manager “pin up” a delivery driver against the wall. She further submitted that he was constantly “cursing”.

The Complainant submitted that the workplace was a very “sexualised environment” in which she felt uncomfortable. She submitted that her male colleagues regularly discussed women and sex. She submitted that they would “howl” at women who walked by the store window. She submitted that she experienced numerous incidents of discrimination and sexual harassment perpetrated by the Deputy Manager, shift managers and male colleagues, such as:

·            R1 always undid her apron when she was on the phone taking orders. She asked him why he did this but he did not respond.

·            In early May 2022, her male colleagues constantly knocked on the backroom doors (which had no locks) where she was changing before her shift began.

·            On another occasion, as she walked to the same backroom, she passed R2, R3 and R4. R2 asked if they could watch her change and they all laughed.

·            In May/June 2022, R2 told her that they would use the pizza oven shovel to “spank her on the bum”.

·            In July 2022, when the Complainant was inputting an order for two pizza, R5 poked her bottom with a stick. She said “what the hell” and he just laughed.

·            In late July while her Manager was away, she had to liaise with R2 in relation to annual leave matters. When she sought to book one week’s annual leave, he responded in a sexually suggestive tone that she “would have to work for it”.

·            In July 2022, when talking to R1 about her hours, he asked her if she was still seeing her boyfriend and if they “ha[d] fucked yet” and laughed. The Complainant did not answer and submitted that she felt uncomfortable.

·            On 29 July 2022, the Complainant and another colleague forgot their nametags. R2, along with two other male colleagues presented her with a nametag with her name and a pair of breasts printed on it. She asked them why they did that. R2 told her that it was funny. The Complainant outlined that she went to the backroom where she texted a friend. She was followed by R1 and R2 who told her to wear the nametag between her breasts. The Complainant then went to the bathroom and cried. One colleague later apologised. The following day, R2 reluctantly apologised to her. The Complainant produced the nametag and a photo of the same, by way of evidence.

·            In August 2022, when the Complainant jumped to reach a pizza box, R2 told her that she should produce content for “Onlyfans”. The Complainant understood this as being told to produce pornography.

·            On the same day, R2 said to her, in the presence of another member of staff and delivery drivers, “you only have 5 good years left, after that it is all downhill”.

·            At the end of August 2022, a delivery driver drove her home at the end of her shift, as was the practice. They stopped en route so that she could have a cigarette and he asked her “would you be down for sex”.

·            On another date, another delivery driver said to R3, as the Complainant passed by, “don’t worry, you can masturbate later”.

The Complainant submitted that after the nametag incident, she spoke to a shift manager in mid-late August and asked if she should complain but he told her that it was too late. The Complainant submitted that she didn’t know who to go to with her complaints as it was the Deputy Manager and shift managers who were sexually harassing her and she was frightened of her Manager.

The Complainant submitted that on 19 September 2022, she went to see the Manager and tendered her resignation. She submitted that initially he did not have much of a reaction but later called her back into his office and asked her why she wanted to leave. The Complainant submitted that she told him about “everything that happened”, including the nametag incident. She also showed him a photo of the nametag, on her phone. The Complainant submitted that he laughed in her face and said that her colleagues were “fucking idiots”. The Complainant submitted that he also laughed when she told him about the “Onlyfans” comment and about the delivery driver propositioning her. The Complainant submitted that the Manager asked her what she wanted and offered her a fixed shift pattern, which she declined. The Complainant submitted that he did not give her a copy of the company policy; he did not offer to investigate her complaints; and he did not offer to take further steps.

The Complainant submitted that after tendering her resignation, she was twice clocked out approximately four or five hours after her shift began, without her permission. She was therefore not being paid for the full shift. The Complainant submitted that she believed that this happened as she had resigned and had outlined the details of the discrimination and sexual harassment to her Manager. The Complainant submitted that as a result she left her employment before the end of her notice period.

The Complainant submitted that she got another job in a café in which she earned €10.50 per hour, working 10-15 hours per week. She submitted that she tendered her notice regarding that job, a few weeks ago.

The Complainant submitted that as a result of her experience, she sought counselling, which is ongoing. She submitted that she suffers from anxiety.

CA-00055581-003 - Complaint seeking adjudication by the Workplace Relations Commission under

section 27 of the Organisation of Working Time Act 1997 – Breaks:

The Complainant submitted that she did not receive proper breaks during her employment. She submitted that the breaks were without “structure” or supervision. She submitted that she had to work for five or six hours before she would get a break. She further submitted that about ten minutes into her break, she was often told to come back to work. The Complainant referred to the Respondent’s break record sheets. She submitted that she was frequently instructed by the shift managers to complete the break record sheets by reference to the roster and she had to estimate when an employee’s break was due. She submitted that she was not required to record actual breaks taken.

The Complainant – Cross-Examination:

Under cross-examination, the Complainant stated that she discussed her concerns with co-workers. The Complainant confirmed that she did not put her complaints in writing or raise them with the Respondent’s Head Office. She also stated that she never met the Area Manager.

The Complainant stated that she told the Deputy Manager that the offending behaviour was not funny. She submitted that she did not know what to do. She further submitted that she did not speak to her mother about it as she did not want her to know. She submitted that she spoke to her friends for consolation.

The Complainant submitted that during her first meeting with her Manager, she gave her passport card details and her IBAN number. She received her uniform. She submitted that she signed a number of documents and that her Manager “made it sound like it was not important”. The Complainant submitted that after signing a number of documents on her first day at work, she did not ask for a copy of them.

The Complainant accepted that on 9 September 2022, she messaged her Manager about her male friend who was looking for a job with the Respondent.

The Complainant confirmed that she first raised her concerns with her Manager about her treatment on 19 September 2022, after tendering her resignation.

The Complainant submitted that she did online training concerning manual handling and pizza dough. She submitted that she could not recall if the online training referred to the Employee Handbook.

The Complainant submitted that she did not raise a complaint about her breaks. She submitted that she could not remember if she got a break on the 18 or 22 September 2022. She submitted that she would have received a break on 24 September 2022 but there was no “structure” to it. She submitted that it was not her signature on the Respondent’s break record sheets presented.

The Complainant submitted that while other members of staff had been clocked out before, prior to their shift ending, it had not happened to her.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant had not made any complaints and that it had no knowledge of the same until it received the Complaint Form which was submitted to the WRC on 16 March 2023. The Respondent submitted that it cannot investigate something that it has no knowledge of. The Respondent submitted that the Complainant has only made assertions and has provided no evidence by way of support. The Respondent submitted that the Complainant has not met the threshold of a prima facie case pursuant to section 85A of the Employment Equality Act 1998-2015 as amended (the “EEA”). The Respondent relied on, inter alia, Southern Health Board v. Mitchell (AEE/99/E); Rotunda Hospital v. Gleeson [DDE003/2000]; Cork City Council v. McCarthy EDA21/2008; and Melbury Developments Ltd v. Valpeters [2010] ELR 64.

The Respondent submitted that it has a “comprehensive and clear” anti-harassment and bullying policy in place, and that a copy of the same was provided to the Complainant. The Respondent submitted that it has taken all reasonably practical steps to ensure that the Complainant was not sexually harassed and that it has fulfilled its obligations pursuant to section 14(2) of EEA. The Respondent submitted that it carried out an “informal investigation” when it received the WRC Complaint Form.

The Respondent submitted that the Complainant’s allegations regarding her breaks, brought pursuant to section 27 of the Organisation of Working Time Act 1997, were without merit. Finally, the Respondent submitted that the cognisable period for the complaint runs from 16 September to 24 September 2022.

Mr. Bartram – Evidence:

Mr. Bartram outlined that he is the Respondent’s CEO. He outlined that he previously held a number of roles with the Respondent, including COO and Area Manager. He outlined that at the time of the complaint, the Respondent had 21 stores in Ireland and now it has 23.

Mr. Bartram outlined that if a complaint is made, the Store Manager notifies the Area Manager and the Operations Manager. The Executive Team is put on notice. At that stage an investigation is carried out by the Area Manager or an Investigations Manager.

Mr. Bartram outlined that he was first on notice of the Complainant’s complaints when he received the WRC Complaint Form. He outlined that he conducted an “informal investigation” insofar as he, the Director and the Operations Manager spoke to the relevant store Manager and asked for more information. Mr. Bartram outlined that the store Manager provided no information of concern and nothing to warrant a “bigger investigation”.

Mr. Bartram outlined that there are “controls” for each premises including HR paperwork audits, visa checks and brand audits. He outlined that Area Managers regularly visit stores.

Mr. Bartram – Cross-Examination:

Mr. Bartram accepted that there was a failure on the part of the store Manager to report the Complainant’s complaints to the Area Manager.

Mr. Bartram outlined that there was some email correspondence regarding the “informal investigation” but it was not followed up.

Mr. Bartram did not accept that as three of the Respondent’s most senior officers were involved in the investigation, it was a “formal investigation”.

Mr. Bartram accepted that if the store’s management perpetrated or witnessed the sexual harassment as alleged, then it follows that management was on notice of the same.

CA-00055581-001: As noted above, this complaint was withdrawn.

CA-00055581-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 – Gender and Age Discrimination; Harassment; Sexual Harassment; and Victimisation:

The Law:

Discrimination:

Section 85A of the Employment Equality Act 1998-2015, as amended (the “EEA”), provides:

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

Therefore, the burden of proof is on the Complainant to show that she was treated less favourably on account of her age and / or gender.

In Southern Health Board v. Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court held that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Harassment and Sexual Harassment:

Section 14A(7) of the EEA provides:

“(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The test is a subjective one and the intention of the perpetrator of the harassment or sexual harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. The conduct should be viewed from the perspective of the victim. Moreover, these provisions must also be read in conjunction with section 15 of the EEA which fixes an employer with vicarious liability under the EEA for the wrongful acts of an employee committed in the course of that employee’s employment.

As noted at paragraphs 34 and 35 of the Code of Practice on Sexual Harassment and Harassment at Work, prepared by the Irish Human Rights and Equality Commission:

“Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. […] The conduct at issue may not be specifically directed at a particular employee but nevertheless has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

Moreover, Chapter 12.22 of “Employment Equality Law” 2nd ed. (Bolger, Bruton and Kimber) states that sexual harassment is actionable per se and does not require to be specifically linked to a discriminatory ground and it does not require a comparator.

Defence:

Sections 14A(2) and 15(3) of the EEA provide for a defence to harassment and sexual harassment allegations. However, as noted by the Labour Court in A Hotel v. A Worker, EDA0915 the employer must be proactive as regards the prevention of harassment and sexual harassment; and must show, at a minimum, that there was a clear anti-harassment or dignity at work policy in place, which is effectively communicated to all. Additionally, management must be trained in how to deal with incidents of harassment and to recognise it.

Victimisation:

In addition, the Complainant alleges that she was victimised as a result of her complaint of discrimination and sexual harassment made on the day that she tendered her resignation. Victimisation is defined in section 74(2) of the EEA as:

“adverse treatment of an employee by his or her employer” as a reaction to a complaint of discrimination having been made by the employee to the employer.

The EEA specifically protects a person against dismissal or other adverse treatment by their employer because they have made a complaint to their employer about possible discrimination; or taken proceedings under the EEA; or opposed by lawful means an act which is unlawful under the EEA.

Award:

Section 82(1) of the EEA provides for the types of redress which can be ordered, including inter alia, compensation and a course of action.

Section 82(4) of the EEA provides that the maximum amount which may be ordered by way of compensation is:

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

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

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

(iii) €40,000,

or

(b) in any other case, €13,000.”

The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin.

In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions (the “Von Colson Principles”).

Findings and Conclusion:

In her Complaint Form submitted on 16 March 2023, the Complainant submitted that she was discriminated against on the grounds of gender and age; harassed; sexually harassed; and victimised during her employment. 

Allegations of Age Discrimination:

The Complainant submitted that she was 18 years old during her period of employment. The Complainant did not make any detailed submissions or provide detailed evidence as to how she was treated less favourably on account of her age. In the circumstances, I find that the Complainant was not discriminated on the grounds of age in violation of the EEA and that this element of the complaint is not well founded.

Allegations of Harassment:

The Complainant indicated in her Complaint Form submitted on 16 March 2023 that the Respondent treated her unlawfully by discriminating against her in harassing her. However, the Complainant did not make any detailed submissions or provide any evidence as to how she was harassed on any of the protected discriminatory grounds. In the circumstances, I find that the Complainant was not harassed in violation of the EEA and that this element of the complaint is not well founded.

Allegations of Gender Discrimination and Sexual Harassment:

The Complainant’s uncontested evidence was that her workplace was a very “sexualised environment”. She submitted that her male colleagues regularly discussed women and sex. She submitted that they would “howl” at women who walked by the store window. She outlined numerous incidents of discrimination and sexual harassment perpetrated by her Deputy Manager, shift managers and male colleagues over the course of her employment, such as:

·            Male colleagues knocking on the backroom doors (which had no lock) when she was changing before her shift began and later asking if they could watch her;

·            In May/June 2022, R2 telling her that they would use the pizza oven shovel to “spank her on the bum”;

·            In July 2022, R5 poking her bottom with a stick as she inputted pizza orders;

·            In July 2022, R1 asking if she was still seeing her boyfriend and if they “ha[d] fucked yet”;

·            On 29 July 2022, R2, along with two other male members of staff, presenting her with a nametag with her name and a pair of breasts printed on it;

·            In August 2022, R2 telling the Complainant, as she jumped to reach a pizza box, that she should produce content for “Onlyfans”;

·            At the end of August 2022, a delivery driver drove her home at the end of her shift, as was the practice. They stopped en route so that she could have a cigarette and he asked her “would you be down for sex”; and

·            On another date, another delivery driver telling R3, as the Complainant passed by “don’t worry, you can masturbate later”.

·            On 19 September 2022, when the Complainant outlined her concerns to her Manager about “everything that happened”, including the nametag incident, he laughed in her face and said that her colleagues were “fucking idiots”. The Complainant submitted that he also laughed when she told him about the “Onlyfans” comment and about the delivery driver propositioning her. Her Manager did not give her a copy of the company policy; he did not offer to investigate her complaints; and he did not offer to take further steps.

As a consequence of the above, the Complainant submitted that she suffered from anxiety and that she sought counselling, which is ongoing.

Section 85A of the EEA provides for the burden of proof to shift to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her”. Section 85A (4) provides that “discrimination” includes inter alia “sexual harassment”. Pursuant to Southern Health Board v. Mitchell (2001) E.L.R. 201, the Complainant must prove, on the balance of probabilities, the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination. Once these facts are established to (at this instance) the satisfaction of the Adjudication Officer and they are regarded as being of sufficient significance to raise a presumption of discrimination, the onus shifts to the respondent.

The Complainant was credible in her uncontested evidence. She provided considerable detail including dates, names and locations. She also provided corroborating evidence by way of the offending nametag. In the circumstances, I am satisfied that the Complainant has, on the balance of probabilities, established facts which are of sufficient significance to raise a presumption of discrimination. I note that most of the alleged perpetrators of the discrimination and sexual harassment were in management roles and so it follows that the Respondent was on notice of the same. I also note that when the Complainant provided details to her Manager of the discrimination and sexual harassment on 19 September 2022, none of the Respondent’s policies were invoked. Instead, it was the Complainant’s uncontested evidence that he laughed in her face. I also note that many details of the Complainant’s intended viva voce evidence were outlined in her written submissions, provided to the Respondent in advance of the Hearing. The Respondent did not produce a single witness to rebut the Complainant’s allegations. Instead, the Respondent’s CEO provided only high-level information concerning the complaints procedure and an “informal investigation”. In the circumstances, I am satisfied that the Complainant was discriminated against on the ground of gender and sexually harassed, in violation of the EEA.

Defence:

By way of a defence, the Respondent submitted that it had taken all reasonably practical seps to ensure that the Complainant was not sexually harassed in the first instance. The Respondent submitted that it has a comprehensive anti-harassment and bullying policy in its Employee Handbook, which is provided to all employees. The Respondent outlined that there are HR paperwork audits, although no details of the same were put before me. The Respondent further submitted that its employees receive thorough training, although no details of the same were put before me.

I note that the Complainant’s uncontested evidence was that she signed 9 documents 18 times, during an approximate 30-minute meeting on her first day of work. The Complainant also submitted that she had no copy of the Employee Handbook and that she did not know if there was a copy on the premises. Finally, I note the Complainant’s uncontested evidence that when she told her Manager about the discrimination and sexual harassment, he laughed in her face and did not take any further steps.

In A Hotel v. A Worker, EDA0915, the Labour Court found that the employer’s anti-harassment or dignity at work policy must be effectively communicated to all and that management must be trained in how to deal with incidents of harassment and how to recognise it. On the basis of the submissions and uncontested evidence, I do not find that the Respondent’s sexual harassment policy was effectively communicated to employees or managers. I also do not find that management was trained in how to deal with incidents of harassment and how to recognise it. In the circumstances, I find that the Respondent did not take such steps as were reasonably practicable to prevent the sexual harassment. Consequently, the defence under s.14A(2) of the Act has not been made out and I cannot accept that the Respondent has discharged the onus placed on it of proving that it took all reasonably practicable steps to prevent its employees from discriminating against and sexually harassing the Complainant.

Award:

In the circumstances, I find that the Complainant was discriminated against on the ground of gender and that she was sexually harassed. Therefore, I find that the complaint is well founded. The Complainant was not in receipt of remuneration at the date of the reference of the case nor was she dismissed. In the circumstances, the maximum amount that I can award under section 82(4) of the EEA is €13,000. In view of the serious nature of the Complainant’s uncontested evidence I am awarding the Complainant compensation in the amount of €13,000.

In addition, pursuant to section 82(1) of the EEA, I order the Respondent, within six months of the date of this Decision, to review the operation of its harassment and sexual harassment policy. This includes a review of the effectiveness of arrangements in place to communicate the policy to management and employees; and a review of the training in place for management in how to recognise and deal with incidents of harassment and sexual harassment.

Allegations of Victimisation and Award:

The Complainant submitted that after tendering her resignation, she was twice clocked out approximately four or five hours after her shift began, without her permission. The Complainant submitted that this had never happened to her before. Under cross-examination, the Complainant submitted that other members of staff had been clocked out before their shift ended.

I note that the Complainant’s uncontested evidence was that prior to her resignation, she had never been clocked out of her shift, without her permission, before it ended. This happened for the very first time, after she had outlined the discrimination and sexual harassment to her Manager on 19 September 2023. The temporal proximity of these events cannot be ignored. In the circumstances, the Complainant has shown that she suffered “adverse treatment” (see section 74(2) of the EEA) as a reaction to her complaint of discrimination and sexual harassment made on the day that she tendered her resignation.

In the circumstances, I find that the Complainant was victimised in violation of the EEA and so this element of the complaint is well founded. In the circumstances, I am awarding the Complainant compensation in the amount of €3,000 (approximately two months’ pay).

CA-00055581-003 – Complaint seeking adjudication by the Workplace Relations Commission under

section 27 of the Organisation of Working Time Act 1997 – Breaks:

The Law:

Section 12 of the OWTA provides:

“(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

Section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded.

Findings and Conclusions:

The cognisable period for this complaint runs from 17 September 2022 until 24 September 2022. The Complainant’s uncontested evidence was that she did not receive proper breaks during her employment. She submitted that the breaks were without “structure” or supervision. She submitted that she had to work for five or six hours before she would get a break. She further submitted that about ten minutes into her break, she was often told to come back to work. The Complainant submitted that she was frequently instructed by the shift managers to complete the break record sheets by reference to the roster and that she estimated when an employee’s break was due. She submitted that she was not required to record the actual breaks taken.

Under cross-examination, the Complainant submitted that she could not remember if she got a break on the 18 or 22 September 2022. She submitted that she would have received a break on 24 September 2022 but there was no “structure” to it. She submitted that it was not her signature on the Respondent’s break record sheets presented. She submitted that that the break record sheets did not reflect actual breaks taken by employees.

On the basis of the uncontested evidence, I find that the Complainant did not receive breaks in accordance with section 12 of the OWTA and that her complaint is well founded. I note that the right to rest breaks is derived from the Working Time Directive and the Von Colson Principles apply. Pursuant to section 27(3) of the OWTA, I order the Respondent to pay the Complainant compensation in the amount of €3,000 (approximately two months’ pay) for the breach of the Complainant’s statutory rights. This award is just and equitable having regard to all the circumstances.

CA-00055581-001: As noted above, this complaint was withdrawn.

CA-00055581-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 – Gender and Age Discrimination; Harassment; Sexual Harassment; and Victimisation:

For the reasons outlined above, I find that the Complainant has not established a prima facie case of

discrimination on the ground age. Therefore, I find that the Complainant was not discriminated against on the ground of age and this element of the complaint is not well founded.

For the reasons outlined above, I find that the Complainant was not subjected to harassment on any of the protected discriminatory grounds. Therefore, I find that this element of the complaint is not well founded.

For the reasons outlined above I find that the Complainant was discriminated against on the ground of gender and I find that the Complainant was sexually harassed. Therefore, I find that these elements of the complaint are well founded. I order the Respondent to pay to the Complainant compensation in the amount of €13,000.

In addition, I order the Respondent, within six months of the date of this Decision, to review the operation of its harassment and sexual harassment policy. This includes a review of the effectiveness of arrangements in place to communicate the policy to management and employees; and a review of the training in place for management in how to recognise and deal with incidents of harassment and sexual harassment.

For the reasons outlined above, I also find that the Complainant was victimised and that this element of her complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €3,000.

CA-00055581-003 - Complaint seeking adjudication by the Workplace Relations Commission under

section 27 of the Organisation of Working Time Act 1997 – Breaks:

For the reasons set out above, I find that the complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €3,000 for the breach of the Complainant’s statutory rights.

Total Amount Awarded for all Complaints: €19,000.

The Organisation of Working Time Act 1977; the Employment Equality Act 1998; Discrimination; Sexual Harassment; Victimisation.