Complainant

Respondent

Anonymised Parties

Bartender

Hospitality Services Provider

Representatives

Self-represented

Andrea Montanelli, 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-00064086-002

13/06/2024

The Complainant worked for the Respondent from 14 February 2024 until 4 June 2024 as a bartender.  The Complainant claims that the Respondent discriminated against him on the grounds of race. He also claims that the Respondent discriminated against him in his conditions of employment.  He further claims that the Respondent harassed and sexually harassed him.

The Respondent rejects the Complainant’s claims.

Direct Evidence of the Complainant

The Complainant is a Turkish national.

The Complainant was dismissed by his Line Manager on 4 June 2024 by email.  In his email, the Complainant’s Line Manager informed the Complainant that his behaviour was a form of gross misconduct.  The Line Manager also accused the Complainant of treating female colleagues in a misogynistic manner.  The Complainant contents that his Line Manager’s email of 4 June 2024 was harassing and abusive.

The Complainant responded to his Line Manager later the same day (4 June 2024).  In his email, the Complainant queried the alleged incidents of misogyny as he felt that his Line Manager’s claim that he had engaged in this type of behaviour was not correct. The Complainant assumes that his Line Manager was referring to the time that he spoke to two female colleagues about duties they were assigning to him.  He received direction from one female colleague (Bartender A) to start cleaning the second cocktail section just 10 minutes before closing time.  The Complainant was aware that that Bartender A had recently been promoted to the position of supervisor, so he followed her instructions. At the same time, another female colleague (Bartender B) came over and told him that they were still serving, which was confusing, and he was unsure whose direction to follow.

The Complainant contends that his colleagues reported his behaviour as misogyny, which the Complainant asserts is unacceptable. In addition, the Complainant asserts that Bartender B was continually treating him as an inexperienced bartender and refusing to allow him to work in peace and making uncalled-for comments in their conversations such as when he returned from his accident, she said ‘ah, you fractured your elbow and fucked off’.

These are not words or ways of communication that the Complainant preferred to engage with, so he tried to keep his interactions with other staff as limited as possible, as their communication styles seemed to be very different to his. At work, he preferred to limit his communication with co-workers to work matters as he finds this to be professional and did not want to engage in idle gossip and sharing of private life details as the other staff did. His life choices differ to theirs as he does not participate in the same type of behaviours that seem to be tolerated, this is just simply not his lifestyle.

The Complainant feels that issues between him and other staff arose from a lack of intercultural awareness as in his culture, people do not behave like this (i.e. hugging, sharing intimate details, etc. with coworkers) and they prefer to keep a professional distance, unlike what he had witnessed with the other staff.  The Complainant suggests that if his colleagues felt hostility towards him due to this, that was a matter of xenophobia and was not as it has been painted.

The Complainant submits that his Line Manager or the Co-Owner never replied to his email of 4 June 2024 despite multiple requests from him to clarify their claims that led to his unfair dismissal. Furthermore, in his email of 4 June 2024, the Complainant also brought up a complaint of harassment that nobody from the Respondent company has responded to him about. 

The Complainant submits that on 21 March 2024 roughly after 8pm when he was working behind the bar, one of the owners sent a message via a female customer he was sitting with to him. The female customer came up to the Complainant and asked if he knew who was running the building.  The customer pointed to the man she had been sitting with.  She told the Complainant that he was the owner, and that he liked him, with the indirect message being that this was in a sexual manner. The next day, the Complainant heard from the Deputy Manager that this man has also been flirtatious towards another colleague which, the Complaint contends, is an abuse of power and highly inappropriate in a workplace. The Complainant had waited to bring this up with his Line Manager as he was out on sick leave and then did not find a good time to sit down with his Line Manager when he returned. The Complainant asserts that what happened was sexual harassment and was a totally unacceptable situation to put employees in.  The Complainant said that he was upset by the incident and went home early as a result.

Cross-examination of the Complainant by Ms Montanelli on behalf of the Respondent

The Complainant said that he felt discriminated against because of his different lifestyle; his communication style; and his different habits.

The Complainant said that he was discriminated against on the grounds of race because colleagues were talking about him behind his back.  The other staff did not make any effort to make him feel comfortable.

The Complainant said that this was not the only incident.  The other incidents were more like feelings.  It was obvious what his colleagues’ opinions of him were.  Other staff could not understand him due to different body language.  He did not feel part of the same environment. He didn’t know that some of the staff were not Irish.

The Complainant also felt that he had been discriminated against because of his Line Manager’s email of 4 June 2024. He felt that his Line Manager had only listened to his colleagues and had not asked him for his side of the story.  No one came to him to question his understanding of what had happened. 

The Complainant said that after his employment with the Respondent was terminated, he needed to clear his mind as what had happened was affecting his daily life.  Therefore, he has forgotten some of the discrimination which he experienced during his employment with the Respondent.

The Complainant nominated a colleague from Brazil as a comparator.  He confirmed that his comparator was treated in the same way as he had been treated.

In relation to the incident regarding the closure of the cocktail bar, the Complainant said that when his colleague asked him why he was closing the bar, he did not shout at her.

The Complainant referred to another incident between him and his female colleagues where there was an argument about whose responsibility it was to replace the toilet paper and towels in the customer bathroom.   The Complainant said that because the bathroom was not a single gender bathroom, he was not comfortable going into it while there were women present.  For this reason, he would only clean the bathroom at the end of his shift.

The Complainant said that when a female customer came and told him that the owner liked him, he felt sexually harassed. The Complainant confirmed that he did not know the name of the female customer. The Complainant said that he knew that his alleged harasser was an owner of the Respondent company because the Deputy Manager told him so.  Also, the alleged harasser was regularly in the bar and staff changed their behaviour when he was around which showed that he was the boss. The Complainant said that his alleged harasser was a tall guy who was a bit chubby. 

The Complainant confirmed that he did not raise the matter of the alleged sexual harassment which occurred on 21 March 2024 at the time.  He was on sick leave from the end of March and only had one week on his return from sick leave in which to bring it up.

The Complainant said that he did not raise the alleged discrimination or sexual harassment until after his employment with the Respondent ended because he kept to himself as he did not want to lose his job.  He did not think that he would be treated fairly.

The Complainant said that his complaint about his conditions of employment was that he had a lot of responsibilities and felt under pressure.

The Respondent strenuously rejects the complaints of discrimination under the Employment Equality Act 1998, as amended (the Act).

The Complainant worked a total of 8 weeks with the Respondent and was paid for the week from 4 to 10 June 2024 even though he did not work those hours as the Respondent was waiting for his response in relation to the retraction of the termination of his employment and the opportunity to initiate a grievance procedure.

The Complainant’s employment was terminated by email on 4 June 2024, he was paid an extra week from 4 to 10 June and the employment officially ceased on 19 June 2024.

Burden of Proof 

The law requires that the Complainant establish a presumption of discrimination before the burden of proof shifts to the Respondent.

The Respondent submits that in order to succeed in a claim of discrimination under the Act, a complainant must show that they are treated less favourably than another person in a comparable situation.  The Respondent contends that the Complainant in this case has failed to demonstrate how he was treated less favourably than any other employee on the grounds of race. Furthermore, it is noted that the Complainant has failed to identify a comparator, whether actual or hypothetical as required by under the Act.  The Respondent submits that, in failing to identify a comparator, the Complainant has failed to demonstrate how he was treated less favourably by his employer, which is fundamental to his claim of discrimination.

The Respondent submits, therefore, that the Complainant has failed and or refused to identify specifics regarding the alleged discrimination, instead making nothing more than “mere assumptions” of alleged discrimination which are without substance.

The Respondent further submits that the Complainant has failed to identify how he was allegedly harassed or sexually harassed as a result of the alleged incidents. Also, he has failed to demonstrate how the conditions of his employment amounted to discrimination.

The Respondent further submits that the Complainant’s allegations of sexual harassment were never raised with the Respondent prior to Complainant’s email of 4 June 2024.

Discrimination on the grounds of race

The Complainant stated that he believes that he was discriminated against on the grounds of his race apparently due to the contents of the dismissal email received on 4 June 2024 and alleged sexual harassment which occurred on 21 March 2024 which was not reported to the Respondent during the Complainant’s employment.

The Respondent submits that there are no comments or remarks whatsoever in respect of the Complainant’s race in the contents of the email sent by his Line Manager on 4 June 2024 nor on the Complainant’s allegations of sexual harassment. 

The Respondent refers to the decision of Darguzis v Lough Corrib Engineering Ltd. (DEC-E2009-038), whereby the Equality Officer noted that the complainant must demonstrate “a difference in treatment”.

In this matter, no difference in treatment was raised between the Complainant and any other employee in comparable situations, nor evidence that the Complainant was treated less favourably than any comparator on the grounds of race. 

It is submitted that the Complainant has not only to establish the primary facts upon which he is relying but also that those facts are of sufficient significance to raise an inference of discrimination.

The Respondent submits that it has not discriminated against the Complainant in the circumstances he alleges. Furthermore, the Respondent submits that the Complainant’s allegations in respect of the incidents mentioned in the email dated 4 June 2024 or alleged sexual harassment do not amount to a case of discrimination on the grounds of race.

Harassment

The Respondent submits that there is no indication or evidence whatsoever that the Complainant was harassed on the grounds of race as alleged. The Respondent submits that the acts of gross misconduct outlined in the email dated 4 June 2024 do not amount to discrimination on the grounds of race towards the Complainant.

The Respondent submits that the Complainant has not established facts based on credible evidence. The Respondent further submits that the Complainant has only made mere speculation or assertions that he has not given any more detail to.  Notwithstanding the above, the Respondent denies that the Complainant was harassed in the course of his employment.

It is submitted that the Complainant has failed to satisfy the burden of proof required of him with respect this ground of discrimination and it should fail.

Sexual Harassment

Section 23(3) of the Act, states:

(3) For the purposes of this Act –

(a)   any act of physical intimacy by B towards A

(b)   any request by B for sexual favours from A, or

(c)    any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material), shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.

The Complainant alleges in this complaint form that “One night when I was working behind the bar, one of the owners sent a message via a customer he was sitting with to me. She came up to me and asked, ‘do you know who is running this building’ and pointed to the man he was standing in front of, and mentioned to me that he was the owner and that he liked me.”

The Respondent strenuously denies these allegations. The Respondent strongly submits that the incident, as alleged, never occurred. The Respondent further submits that none of the owners of the business are homosexual or bisexual.

Furthermore, the Respondent also refutes the Complainant’s allegation set out on his complaint form that “I heard from [C] that this man has also made flirtations towards [D] too, which is abuse of power and highly inappropriate in a workplace”.

The Respondent submits that there is no evidence in relation to any of these allegations, and even if there were, which is disputed, the situation described by the Complainant cannot be deemed as sexual harassment in terms of section 23(3) of the Equality Act.  There is no allegation of physical intimacy, sexual favours, spoken words, gestures or the production, display or circulation of written words, pictures or other material from any of the owners of the Respondent towards the Complainant.  The Complainant merely alleges that someone came to him to inform him that the owner liked him, which does not constitute any of the instances of sexual harassment defined by law.

Furthermore, it is not true that the Respondent never replied to him in relation to these allegations, as an opportunity to raise a formal complaint to investigate the incidents was made to the Complainant in an email dated 7 June 2024 from one of the co-owners to the Complainant.

The Respondent submits that, in these circumstances, the Complainant was afforded fair procedure but refused to raise a grievance in relation to the alleged incident of 21 March 2024 to be investigated and dealt with internally.

Relevant direct evidence of the Complainant’s Line Manager

The Complainant’s Line Manager confirmed that the Complainant had not raised a complaint of harassment or xenophobia with him until 4 June 2024.  The Manager said that he never treated the Complainant any differently to other staff.

In reference to the Complainant’s nominated comparator, the Manager said that the Respondent company did not have a male Brazilian employee at the time the Complainant was employed.

The Manager said that none of the owners of the Respondent company met the Complainant’s description of his alleged sexual harasser as being tall and chubby.

Relevant direct evidence of the Managing Director (Co-Owner)

The Managing Director of the Respondent company confirmed that none of the owners of the Respondent business was homosexual or bisexual.  He raised the matter of the alleged harassment with his co-owners but none of them had a clue what he was talking about.  The Managing Director suggested that the alleged sexual harassment seemed like a misunderstanding as it was not something that made any sense to him.

The Managing Director confirmed that he had not been made aware of any allegation of sexual harassment during the Complainant’s employment.

The Managing Director said that all staff, regardless of race, were treated the same way by the Respondent company.

Relevant direct evident of Bartender B

Bartender B, who is Spanish, referred to the incident of the cocktail station which was referenced by the Complainant in his evidence.  Bartender B said she could not find ice and asked the Complainant, who was closing down a cocktail station, what should she do.  She felt quite threatened when he shouted at her. Bartender A saw her discomfort and separated them. Bartender B did not understand the Complainant’s reaction – she had never been spoken to like that before. She felt that the Complainant was very aggressive in tone. He had his hands in her face and stood over her. Bartender B felt that the Complainant behaved differently towards women.

She did not report the matter to any manager.  She assumed that Bartender A had done so.

Bartender B denied making any comment as alleged when the Complainant returned from sick leave.

Bartender B is of the view that the Respondent company is quite culturally diverse.  She never saw any discrimination towards the Complainant because he was Turkish. 

Relevant direct evidence of Bartender C

Bartender C said that when the Complainant joined the Respondent company, she talked to him about Turkey as her family go there every year.  She remembers being told by the Complainant that he did not like some nationalities which he named.

Bartender C referred to interactions with the Complainant where she felt that he treated her differently because of her gender.  She mentioned an incident on 23 May 2024 concerning the restocking of the customer bathroom and other incidents related to cleaning.

Relevant direct evidence of the Assistant Manager

The Assistant Manager confirmed that the Complainant never told him that he had been sexually harassed. The Assistant Manager said that he had never had a conversation with the Complainant about sexual harassment.  The Assistant Manager said that he had no recollection of a conversation with the Complainant about the owners of the Respondent company.  Nor did he have any recollection of talking about any owner’s sexual orientation with a member of staff.

The Deputy Manager said that he did not say that the alleged harasser had flirted with another colleague.

In relation to the Complainant’s submission that he had felt excluded, the Assistant Manager recalled drinking beer with the Complainant and talking to him about Turkish culture.  However, he felt that there was a distance between the Complainant and other staff.

Relevant direct evidence of the Bookkeeper

The Bookkeeper referred to an interaction he had with the Complainant on 28 May 2024 when he entered the bar holding an unlit cigarette.  The Complainant did not recognise him as an employee of the Respondent company maybe because he worked in an office next door even though he would have been constantly in and out of the bar.

The Bookkeeper said that the Complainant spoke to him in a very aggressive manner and told him to get out as smoking was not allowed in the bar.  The Complainant seemed very aggressive and did not give the Bookkeeper a chance to respond.  In the end, the Bookkeeper had to ask Bartender A to tell the Complainant to stop.

The Bookkeeper thought that the Complainant seemed like the wrong mix for the Respondent company and seemed to be way too aggressive.

Conclusion

It is submitted that the Complainant has failed to satisfy the burden of proof required of him and that his complaint should fail.  The Complainant has made mere ascertains of alleged discrimination but has failed to establish any evidential basis for his claims. 

The Complainant referred his claim to the Director General of the WRC on 13 June 2024 alleging that he was discriminated against by the Respondent by reason his race. He further alleged that he was harassed and sexually harassed by the Respondent.  The Complainant is a Turkish national.

The Respondent rejects the complaints.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

Legal Framework

Discrimination

Section 6(1) of the Employment Equality Act 1998, as amended (the Act) provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)  (in this Act referred to as the “discriminatory grounds”) which—

(i)               exists,

(ii)              existed but no longer exists,

(iii)            may exist in the future, or

(iv)            is imputed to the person concerned,

Section 6(2) of the Acts defines the relevant discriminatory grounds as follows.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…

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

Harassment and sexual harassment

Section 14A of the Act provides that;-

(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or him employment by a person who is—

(i) employed at that place or by the same employer, (ii) the victim's employer, or (iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, (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.

Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects.

Burden of proof

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground of race. This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent and it is for the Respondent to prove that there was no infringement of the principle of equal treatment.

Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination in the following manner:

“(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.”

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent. 

The Labour Court elaborated on the interpretation of section 85A in the case of Melbury v Valpeters EDA0917 where it held that section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a covered by one of the grounds of discrimination i.e. race to render acts discriminatory.  If for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a presumption of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows: “It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(i)      that he is covered by the relevant discriminatory ground(s)

(ii)    that he has been subjected to specific treatment and

(iii)  that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Findings

Discrimination on the grounds of race

The Complainant claims that he was discriminated against during his employment with the Respondent because he is Turkish.

The Complainant appears to base his complaint of discrimination on the ground of race of his Line Manager’s letter of 4 June 2024 in which he accused the Complainant of misogyny.  The Complainant asserts that he was treated differently due to his colleague’s lack of awareness of his culture and the fact that people of his nationality are less friendly with their colleagues and prefer to maintain a professional distance. 

From the evidence put before me, it is clear that the relationship between the Complainant and his former colleagues, particularly his former female colleagues, was not harmonious.  His former female colleagues felt that he treated them differently to how he treated his male colleagues, and this was raised as an issue with the Line Manager which led to the accusation of misogamy.  The Bookkeeper also felt that the Complainant treated his aggressively for no discernible reason.  The Complainant has not provided any evidence to show that this disharmony was caused by reason of his race. 

Furthermore, he has not provided a valid comparator who was treated better than the Complainant was because they were of a different race.  When the need for a comparator was explained to him, he nominated a Brazilian colleague who he asserted was treated in a similar manner to the way that he had been treated. The Complainant was unable to name his Brazilian colleague.  During his direct evidence, the Deputy Manager confirmed that there was no male Brazilian in the Respondent’s employment at the same time as the Complainant.  The Complainant did not challenge the Deputy Manager’s evidence.

Having carefully considered the matters raised by the Complainant, I find that the Complainant has not established primary facts to support a claim of discrimination on the grounds of race. Therefore, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment. 

Discrimination in conditions of employment

The Complainant asserted that he was discriminated in his conditions of employment on the ground of race because he had a lot of responsibilities and felt under pressure.

The Complainant did not put any evidence before me to support his element of his complaint.

I find, therefore, that the Complainant has not established primary facts to support a claim of discrimination on the grounds of race. Accordingly, the burden of proof does not pass to the Respondent to prove that there was no infringement of the principle of equal treatment in this regard.

Claim of harassment

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a link between the alleged treatment and the discriminatory ground.

The Complainant was dismissed by his Line Manager on 4 June 2024 by email.  In his email, the Complainant’s Line Manager informed the Complainant that his behaviour was a form of gross misconduct.  The Line Manager also accused the Complainant of treating female colleagues in a misogynistic manner.  The Complainant contents that he suffered harassment as a result of his Line Manager’s email of 4 June 2024.

There is no doubt that the Line Manager’s email of 4 June 2024 was not an appropriate manner in which to dismiss an employee. The entire process lacked procedural fairness and did not display any awareness of Respondent’s duty of care towards the Complainant.  The Complainant, however, did not provide any evidence to show a link between the alleged harassment and his race.  Furthermore, the Complainant in his evidence did not point to any time or occasion during his employment when he raised allegations of harassment on grounds of race with the Respondent or sought to invoke protection under any of its policies.  

I am satisfied that the Complainant did not make any complaint of harassment on grounds of race to the Respondent and that the Respondent was not in any position to take steps to prevent or reverse the effects of any alleged harassment.

Having regard to the evidence before me, I find that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his race contrary to section 14A of the Act. 

Claim of sexual harassment

The Complainant alleges that on 21 March 2024 when he was working behind the bar, a female customer approached him, pointed to a man who she identified as an owner of the premises and said he liked the Complainant.  The Complainant understood this comment to be sexual in nature and felt that he had been sexually harassed.

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

The Complainant was unable to provide the name of either the alleged co-owner or of the female customer.  From the Complainant’s evidence, it is not clear if the alleged co-owner ever said that he liked the Complainant.  The Complainant was repeating something of that was allegedly said to him by a female customer which made him feel so uncomfortable that he had to go home early from work.  Furthermore, the Complainant’s evidence concerning his conversation with the Deputy Manager, which the Complainant believes supports his complaint, have been robustly denied by the Deputy Manager. 

In light of the above, I am not satisfied that the Complainant has presented any evidence from which I could reasonably conclude that he was subjected to sexual harassment contrary to the Act. 

I decide that

·        The Complainant has failed to establish a presumption of direct discrimination on the grounds of race.

·        The Complainant has failed to establish a presumption of discrimination in his conditions of employment on the grounds of race.

·        The Complainant has failed to establish a presumption of harassment by the Respondent contrary to section 14A of the Act.

·        The Complainant has failed to establish a presumption of sexual harassment by the Respondent contrary to section 14A of the Act.

Accordingly, I decide that the complaint is not well founded.

Failure to establish a presumption of discrimination