Complainant

Respondent

Parties

Dean  Slattery

Liberties Recycling Training & Development Company Limited By Guarantee

Representatives

John Mulvey

Gail Maher IBEC

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-00061286-001

30/01/2024

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

CA-00062717-001

10/04/2024

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

CA-00062717-002

10/04/2024

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

CA-00062717-003

10/04/2024

The Complainant submitted  a claim pursuant to Section 77 of the Employment Equality Act 1998 (as amended).  This claim of discrimination on grounds of sexual orientation in respect of conditions of employment was lodged on 30th of January 2024.   A claim of harassment on the same grounds of  and of victimisation were also lodged in this claim form.

Further claims were lodged by the complainant on 10th of April 2024.  Two of these claims were taken under the  Organisation of Working Time Act, 1997 specifically relating to annual leave entitlements and compensation for Sunday working.   This claim form also contained a further claim under section 77 of the Employment Equality Act, 1998 taken on the ground of sexual orientation in respect of pay.

The complainant submitted an additional claim under the Unfair Dismissals Act on 12th of July 2024.    The Unfair Dismissals claim is dealt with under a separate Adj reference ADJ-00052901.

All matters were dealt with at the hearing on 2nd of December 2024.

The complainant submits that he was  discriminated against on the grounds of his sexual orientation, in relation to his conditions of employment and that he has been subjected to harassment and victimisation. The complainant is gay.

The Complainant submits that he commenced employment with the Respondent on 16 July 2021, as a Driver/Collector. Prior to his employment terminating, he was on €15 per hour, being €600 per week.   He submits that his pay should have increased to €17 per hour during the period of his paid suspension.

The complainant submits that on or about 14 December 2023, he was  subjected to a hostile, distressing and homophobic incident by a colleague Mr. B, who deliberately grabbed and squeezed his hand violently, when purporting to shake it.

The complainant submits that he told  Mr. B that he was hurting him, but that MR. B then grabbed his hand  all the more and he then made reference to Pope John Paul and shook his other colleague, Mr. C’s, hand in a normal fashion, making the comment "watch how I shake a real man 's hand'.

The complainant submits that  this was a reference to the Complainant's sexual orientation.

The Complainant submits that he was left shocked and distressed by this incident and left the  premises to get a coffee in McDonalds.

The complainant thereafter sent a text to his manager Mr Tom Sheridan (Mr. S) who went across the road and joined the complainant.   The complainant submits that he told Mr. S what had happened and assured him that he would look into it and would speak to M and MR. B, and so the Complainant returned to work on that basis.

The complainant submits that It is clear however that this incident was not in fact addressed or was certainly not adequately addressed.

The complainant submits that another incident took place on 20 December 2023 when the Complainant after working offsite, returned to the Respondent's premises and was unloading his van, MR. B walked towards him, in an intimidatory manner.  MR. B then made a comment and the Complainant replied that he didn't want to talk to him after the previous incident which was uncalled for (It is notable that there had been no effort to apologise for this incident).

The complainant submits that MR. B then became extremely angry and aggressive and called the Complainant a 'bitch'.   When the Complainant stated that he was not going to accept that carry on anymore, MR. B ran towards him and assaulted him by grabbing him and pushing him into the van by his neck.  The Complainant hit his knees off the side of the van. The assault continued despite the intervention of other colleagues.   MR. B continued calling the Complainant names such as "bitch".

The Complainant submits that he attempted to walk away but MR. B followed him, continuing with the abuse. The Complainant submits that he was terrified and that several colleagues were required to hold MR. B back. Eventually the Complainant's colleagues brought him into an office, in an effort to remove him from the situation, but MR. B kicked open the door, making a run at the Complainant saying "look at you now".

The complainant was eventually brought to another office, which was locked behind him, to prevent MR. B from getting in but which also had the effect of trapping the Complainant in the said office.

The Complainant submits that he was left shocked and reeling after the incident. The Gardai were called by the respondent but by 7pm had not arrived, meaning the Complainant was left stuck in the office until after 7pm, when he eventually left. The Complainant made a formal statement in relation to the incident to his employer, which he considered to be a complaint.

Following the incident both the complainant and his colleague Mr. B were placed on paid suspension pending an investigation into the incident.  An investigator Mr. Moloney (Mr. M) was subsequently appointed and the complainant was called to a meeting with Mr. M on  9th of January 2024 to take place in the respondent premises.  The complainant objected to attending the premises, but the respondent refused to hold the meeting off site.  The meeting was held in the same room the complainant had been in following the 20th of December incident

The complainant was called to another meeting on 16th of January again held in the same room on the respondent’s premises

The complainant was called to yet  another meeting on  23rd of January  which he agreed to attend.   A further investigation meeting was then arranged for the 26th of January 2024; however, on the same day, Mr. Moloney needed to reschedule to the 29th of January 2024 for which the Complainant initially confirmed his availability but cancelled on the day advising the respondent that he could not attend due to sickness stating that he had attended doctor and was certified as sick for the week.

Following this the complainant was moved from paid suspension to sick leave and his pay was cut.   The complainant submits that he did not receive his full entitlement to sick pay at  this time but I note that this was later corrected.

The complainant submits that during his time on suspension/sick leave his colleagues were given a pay rise of €2 per hour which the complainant did not receive.   The complainant queried his reduction in pay and the failure to afford him the increase given to his colleagues.  The respondent denied that an increase was given to colleagues.

By email of 1 February 2024  the respondent/investigator Mr M replied to the other issues raised by the complainant by stating that they were following company policies.    The complainant was also informed on this date that the investigation had concluded and the complainant’s suspension was being lifted and he was free to return to work when certified well enough to do so.   The complainant submits that up to this point he was not given any information regarding the investigation.

On 5 February 2024 the Complainant advised the respondent that he was still unwell and on 6 February 2024, Mr M sought a further update.

On 6 February 2024 the Complainant replied that he was still unwell and would be out for another few days and just had to pick up a cert.

The complainant submits that by further email, later on 6th February 2024, Mr M demanded a medical certificate be submitted by 11 am the following day, which he alleged he needed for payroll. The Complainant took issue with Mr M's position, noting that he was covered for the relevant days. He also noted that he would be with his doctor later in the week as he had had a telephone consultation as he was unwell in bed.

In reply Mr M referred rigidly to Company policy and stated that as it was only the beginning of February, the Complainant was only entitled to 1 paid certified leave day.  The respondent later resiled from  this stance acknowledging that the complainant was entitled to 5 days sick pay which was then paid to the complainant.

The complainant by email of 8 Feb 2024 gave notice of leaving the company and stated that he would not be returning after his sick leave.   The matter of the complainant’s termination of employment is dealt with in a separate claim under the Unfair Dismissals act and the outcome of same is contained is a separate decision. 

The respondent submits that the Complainant commenced employment on the 30th June 2022 in the capacity of Driver/Collector. He voluntarily resigned his employment on the 08/02/24.    The Complainant’s role entailed collecting a company truck at the company base and travelling to various clothing bank locations within his designated region, emptying the clothing banks and returning to the base.

 The respondent submits that an altercation took place on the 20th December 2023 between the Complainant and another employee of the Respondent company Mr. B. Both employees were placed on paid suspension pending the outcome of an investigation

 As the Christmas break fell during this time the appointed investigator, Mr. Adam Moloney (Mr. M) Manager, was on leave.  Upon his return from leave Mr. M contacted the Complainant on the 4th of January and asked him to attend a meeting with him on the 5th of January 2024 in order to gather information in relation to the altercation.

 The Complainant agreed but then cancelled on the day of the meeting. The meeting was re-arranged for the 8th of January; however, again the Complainant did not attend and when Mr. M tried to contact him four times that day by phone, it rang out on each occasion.

 Mr. M then received a call that evening from the Complainant and the meeting was arranged for the 9th of January. At the meeting on the 9th of January, the Complainant provided a statement of his version of the events of the 20th of December. He also provided a formal complaint to Mr. M against the other employee Mr. B in relation to the same incident.

The respondent submits that within his complaint, there were no details whatsoever and Mr. M explained to the Complainant that this incident was about to be investigated by the company as conflicting reports had been provided in relation to the altercation and therefore the company had an obligation to fully investigate the incident, taking into consideration the statements from both individuals involved and those that would be gathered from witnesses during the investigation process. The Complainant confirmed he understood this.

Nonetheless, Mr. M provided the company’s Dignity at Work policy and Grievance policy to the Complainant.  The Complainant was then invited to attend an investigation meeting on the 15th of January 2024 and was advised of his right to representation.

 However, the Complainant informed Mr. M that he was unavailable on the 15th of January so Mr. M rescheduled for the 16th of January.

 The respondent submits that the Complainant declined the offer of bringing a representative and the meeting took place as arranged, minutes were taken and signed by the Complainant, and he was provided with a copy.

During this meeting Mr. M referred to an Industrial Relations complaint which the Respondent had received from the WRC in the intervening period,  this was the Respondent’s first indication that the Complainant had any issues with the Respondent.   Mr. M notified the Complainant that the investigation into the alleged incident was still ongoing within the respondent organisation and had not yet concluded and so he questioned the referral of a complaint to the WRC.    The Complainant responded that he had his own reasons for doing so.

Mr. M then invited the Complainant to a follow-up investigation meeting to clarify some further information on the 19th of January 2024. However, the Complainant did not respond until the 22nd of January and a meeting was then arranged for the following day. A further investigation meeting was then arranged for the 26th of January 2024; however, on the same day, Mr. M needed to reschedule to the 29th of January 2024 for which the Complainant confirmed his availability.

On the 29th of January the Complainant informed Mr. M that he would not be attending the follow-up investigation meeting due to sickness and that he had a medical certificate for the full week.    Mr. M wished him well and advised the Complainant that he would be removed from paid suspension and placed on sick leave, in accordance with company policy and asked that he provide his medical certificate in line with company policy.     However, this medical certificate was not provided by the Complainant until the 5th of February 2024.

On the 31st of January the Complainant informed the company that he had not received his full sick pay entitlement, having only received 3 days’ pay for a full week of absence. However, a medical certificate had not been provided to the Respondent at that stage and within his contract of employment it states  that: “There is no uncertified sick leave” .

The Complainant did not provide a medical certificate to the Respondent until the 5th of February, at which stage the company revisited their sick pay policy.  Upon doing so, the Respondent, realising their obligations under their sick leave policy (which had been amended to be in line with the recent Statutory Sick Pay legislation immediately paid the Complainant the additional 2 days’ sick pay which rectified this issue, and they informed the Complainant of same.

On the 1st of February, the Complainant was informed that the investigation into the altercation on the 20th of December had concluded, that it was found that he had no case to answer, that his suspension was lifted and that he could then return to work once he was medically fit to do so.   He was provided with a copy of the investigation report.

However, while on sick leave the Complainant chose to resign from the company on the 8th of February 2024.   The Complainant then lodged his claims under the three above Acts with the WRC on the 10th of April 2024.

The investigation concluded on 1st of February 2024 and showed that the Complainant did not have a case to answer and the other party had the allegations against him upheld.  As the Complainant had informed the company that he was on sick leave from Monday the 29th of January 2024, the Respondent had removed him from paid suspension from that date and placed him onto sick leave. This was explained to the Complainant at the time

The Complainant provided a medical certificate for 5 days and was initially informed that, due to company policy, he was only entitled to 2 days’ sick pay at that time; however, this was reviewed by the company and, in realising their error they immediately and without delay rectified this in accordance with the Sick Leave Act, 2022 and promptly informed the Complainant of this. 

The Complainant states in his compliant form to the WRC that: “When my employer found out I was seeking help from the WRC they became hell to deal with they even stopped my pay and I had to fight to get my full sick pay from them…. I never had any issues with them until they found out I was speaking to the WRC I have all my e-mails that is proof”.   Company policy is to provide a maximum of 5 days’ sick pay, which is in line with the Sick Leave Act 2022.

The Complainant was initially informed he was only entitled to 2 days’ pay of the 5 days he was certified, as his sick leave took place in February of this year; however, as soon as the company realised that, in accordance with legislation, the Complainant was in fact entitled to 5 days’ sick pay without waiting for it to be accrued (ie without it being “pro-rated”) they immediately provided this benefit to the Complainant and informed him that they had done so.

The respondent submits that the moving of an employee from paid suspension to sick pay on the production of a relevant medical certificate is a fair, reasonable and correct action to take; there was no discrimination here. Further, the company provided the sick pay despite the fact that the medical certificate was not produced in line with company Therefore, this issue had been resolved.

The Complainant contends that there was an advertisement for his role while he was on sick leave which offered a higher hourly rate of pay than that which he was receiving. The advertisement incorrectly stated the role was for the Leinster area when in fact it was for the Munster area so it is understandable that the Complainant may have come to this conclusion.  However, it was not in fact his role that was being advertised. The Complainant’s role had in fact been temporarily filled by Mr.  S, Manager, for the duration of the Complainant’s absence.   The Complainant’s role was not filled until after he resigned, but he continued to believe this advertisement was in relation to his role.

The Respondent is most surprised by these claims. Not only are the policies and procedures regarding both Dignity at Work and Grievances in place in the company, but the company can evidence that the Complainant was aware of same. The Respondent provided the updated company handbook to all staff in June 2023, which included the Complainant. The Complainant was also provided with an additional copy of the company’s Dignity at Work Policy and Grievance Policy during the investigation for which he was placed on paid suspension.

 He was also provided with a copy of the company Disciplinary Policy. However, he declined to take this, stating that he did not need it as he already had a copy. The Complainant voluntarily resigned from the company on the 8th of February 2024 and on the same date the Respondent again sent him a copy of both the company Dignity at Work Policy and the company Grievance Policy and requested him, on three separate occasions, to reconsider his resignation so that the Respondent might be afforded the opportunity to resolve any outstanding issues through the relevant company policies

The Complainant chose not to make any complaints through the appropriate channels, despite the Respondent having clearly provided these policies directly to the Complainant a number of times and requesting him to utilise them for any issues that needed to be addressed.   On receiving notification of resignation, the company reached out to the Complainant and offered to meet to discuss his concerns in more detail; however, the Complainant never met with the company.

All of these factors combine to illustrate that the Respondent acted reasonably in all its dealings with the Complainant.  The Complainant did not at any point raise an internal grievance before tendering his resignation, and it is the Respondent’s position that his resignation was thus unreasonable.  The Complainant did not act reasonably in resigning his employment as he had not previously “substantially utilised the grievance procedure to attempt to remedy his complaints” (Conway v Ulster Bank) in respect to the specific concerns about returning to work.

Furthermore, upon receipt of the Complainant’s letter of resignation, the Respondent was concerned to become aware of his allegations and made efforts to assist the Complainant in resolving the issues in order to ensure his return to the workplace.

The Respondent requested the Complainant three times to reconsider his resignation and was provided with the company Grievance policy and the Dignity at Work policy on a number of occasions and the Respondent requested to meet with him to discuss his options within both policies. However, the Complainant refused this and continued with his resignation.

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

CA-00061286-001

30/01/2024

Discrimination Harassment and victimisation

The issues for decision by me now are whether or not the complainant was subjected to harassment  on grounds of his sexual orientation contrary to section 14A (7)  of the Acts and whether he was  discriminated against by the respondent in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to his conditions of employment.   The complainant has also submitted a claim of victimisation in accordance with Section 74(2) of the Acts.

In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 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) …..”

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of his sexual orientation. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  

It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.  

The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

Harassment

Harassment is defined in Section 14A (7) of the Acts as 

‘any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. 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 [my emphasis].

The respondent advised the hearing that it has a policy in place which sets out the expectations of the organisation with regard to dignity in the workplace and discrimination. 

I will firstly deal with the complaint of harassment on grounds of sexual orientation

Harassment is defined at section 14A(7)(a)(i) as any “unwanted conduct related to any of the discriminatory grounds”

This unwanted conduct as per Section 14A(7)(b) “may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

To constitute harassment the acts requests etc must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

The Complainant at the hearing outlined an incident which he alleges took place on 14th of December  2023 between himself and a named colleague Mr. B.   The complainant advised the hearing that Mr. B had deliberately grabbed and squeezed his hand violently, when purporting to shake it.   

The complainant stated that he told Mr. B that he was hurting him, but that Mr. B then grabbed his hand  all the more and he then made a reference to Pope John Paul before turning from the complainant to another colleague Mr. C whose hand he shook in a normal fashion.    While shaking Mr. C s hand Mr. B then made the comment  "watch how I shake a real man 's hand'.  The complainant submits that this was a direct reference to the complainant s sexual orientation.

Mr. B did not attend the hearing to provide direct evidence on this matter and neither did Mr. C.  

 I am satisfied on balance from the evidence adduced that this did take place as outlined by the complainant.  I am also satisfied that this was connected to the complainant’s sexual orientation.

I note that the complainant asserts that he raised the issue of the handshake with the respondent Manager Mr. S.   The complainant advised the hearing that after the incident he had left the respondent premises and went across the road to MacDonalds.   The complainant stated that before he left he spoke to another staff member Ms. L who had witnessed the incident. 

The complainant stated that Ms. L saw that he was upset and told him to go and find his manager Mr. S.  The complainant advised the hearing that he left the premises and that Ms. L had gone to find Mr. S after he left.    The complainant advised the hearing that after he left the premises his manager Mr. S had phoned him back and had joined him across the road in McDonalds as Ms. L had told him about the incident between the complainant and Mr. B. 

Mr. S advised the hearing that Ms. L had told him that the complainant had left and said he ‘had enough of the job’.  I note that this is also referenced in Ms. Ls statement.

The complainant stated that he told Mr. S what had happened, and Mr. S undertook to have a word with Mr. B about the incident.  The complainant advised the hearing that he told Mr. S that he was not going back and that Mr. S told him not to let Mr. B drive him out of the job. 

Witness for the respondent Mr. S agreed that he had gone across the road to talk to the complainant after he heard about the incident, he phoned the complainant and asked if he could go over and talk to him.   Mr. S did not deny that he discussed the incident with the complainant, but he stated that there was no discrimination mentioned as he was unaware of the complainant’s sexual orientation.    Mr. S stated that he did not know the complainant was gay and so he did not initially understand what the problem was in relation to the handshake.

The complainant disputes this and advised the hearing that his partner also worked for the respondent and that it was through the complainant that his partner became aware of the job opportunity with the respondent.  The complainant advised the hearing that a number of staff who knew him also knew his partner and knew that they were in a relationship. 

I note the complainant’s assertion that Mr. S undertook to discuss the matter with Mr. B.    Mr. S at the hearing denied that he had agreed to raise the matter with Mr. B stating that he told the complainant he should talk to Mr. B about the matter himself.   It is clear from the evidence adduced that no action was taken by the respondent following the incident and I am satisfied that the matter was not raised with Mr. B  by Mr. S.

I note that Mr. S states that he was unaware of the complainant’s sexual orientation. I also note the evidence of the complainant who states that Ms. L had witnessed what had happened, had seen that the complainant was upset and advised him to go to his manager. When the complainant left the premises Ms L then went to find the complainants manager and told him about the incident and that the complainant had left.

I note the statement made by Ms L and submitted by the respondent which states that she had told the complainant to go and find Mr. S after the incident I also note that she stated that she went upstairs herself to find Mr. S. following the 14th of December incident.

Even if it was the case that Mr. S was unaware of the complainant’s sexual orientation prior to the 14th of December incident I find it hard to believe that someone would not have clarified this with  Mr. S after the incident or that it would not have become clear to him upon hearing the details of the handshake incident.    Again, I note that Mr. S was alerted to the fact that the complainant had left the premises by Ms. L and that he had then phoned the complainant before going  across the road to talk to him.

I am thus satisfied that the respondent was aware of the complainant’s sexual orientation, if not before the 14th of December incident then certainly after hearing the details of the incident and the context in which it had been perceived by the complainant.    I am also satisfied that Mr. S did not take any action on foot of this first incident.

The complainant advised the hearing that he returned to work without issue until another incident took place on 20th of December.

The complainant advised the hearing that on 20th of December 2023 he was  physically assaulted by Mr. B and that the assault was witnessed by other members of the respondent staff.

The complainant advised the hearing that on 20th of December 2023  he had returned to the respondent’s premises after working offsite and while he was unloading his van, Mr. B walked towards him, in an intimidatory manner.   The complainant told the hearing that Mr. B then asked him if he was ‘busy’ and the Complainant replied that he didn't want to talk to him after the previous incident which he stated  was uncalled for.

The complainant advised the  hearing that  Mr. B  then became extremely angry and aggressive and called the Complainant a 'bitch'.    The complainant stated that he then told Mr. B  that he was not a ‘bitch’ and was not going to accept that carry on anymore, following which  Mr. B grabbed him and pushed him into the van by his neck while calling him names such as ‘bitch’. 

The Complainant told the hearing that  Mr. B continued shouting abuse at him. The Complainant stated  that he was terrified and that several colleagues intervened to try and hold back Mr. B.    Eventually the Complainant's colleagues brought the complainant into an office, in an effort to remove him from the situation, but then Mr. B kicked open the door, making a run at the Complainant and trying to grab him saying "look at you now".

The complainant advised the hearing that he was eventually brought to another office, which was locked behind him, to prevent Mr. B from getting in.  The respondent at the hearing clarified that the room was not locked but the door was closed.

The Complainant stated that he was left shocked and reeling after the incident.   The complainant stated that he was told that the Gardai were called but by 7pm they had not arrived, meaning that the Complainant was left stuck in the office until after 7pm, when he eventually left.   The Complainant while in the room waiting for the Gardai to come  gave an account of what happened which he says was typed up by another member of staff Ms. D.  The complainant advised the hearing that this account of the incident was later apparently lost  and that he had to re submit a formal complaint  in relation to the incident at a later date in January 2024.

Following the incident both the complainant and Mr. B were suspended with pay and an investigation into the incident took place.   The complainant was notified of the suspension by letter from Mr. S which was handed to him before he left the premises.   The outcome of this investigation was concluded on 1st of February 2024.

I note that the respondent at the hearing produced a number of witness statements which had been adduced as part of the investigation.  I note from the evidence adduced that the witness evidence supports the complainant’s assertion that he was called names by Mr. B.   Witness  statements submitted in evidence stated that Mr. B called the complainant a ‘bitch’ and a ‘faggot boy’.  I am satisfied that this treatment was linked to the complainant’s sexual orientation.

I note the complainant’s evidence that Mr. B physically grabbed him during the incident on the 20th of December and while there is no evidence to corroborate his account of Mr. B grabbing him by the neck at the van there is corroborating evidence to support his claim that Mr B later tried to grab him by the neck and that he reached across Ms. P to do so.   This is referenced in witness statements.

I also note the evidence from other witnesses that both the complainant and Mr. B were pushing and shoving each other .    Witness for the respondent, Mr. S advised the hearing that he had not witnessed the incident as he had been across the road with a mechanic at the time but he stated that he had returned to find the complainant and Mr. B pushing and shoving each other while screaming at each other in the reception area.  Mr. S stated that he diffused the matter within 1 minute.   Mr. S stated that he also phoned the guards and despite a number of phone calls, the guards did not arrive and still had not arrived by the time the business was closing at 7 pm and so he made the decision to suspend both parties with full pay pending investigation.

 I am satisfied from the evidence adduced that a number of staff tried to intervene and had to physically intervene to keep Mr. B away from the complainant and also that Mr. B had either kicked or forced the office door open in his attempts to  grab or push the complainant again.

 I am satisfied from the evidence adduced that Mr. B was aggressively pursuing the complainant to the point of his getting through the door of the office necessitating the complainant having to be moved to a different location to try and get him away from Mr. B.

I note that the respondent following the incident on 20th of December placed both parties on paid suspension while an investigation took place.      

I note that an investigation took place and that statements were taken from a number of colleagues who had witnessed the events of the 20th of December.  I note that the complainant himself was also called to and participated in a number of investigation meetings and that Mr. B had also been interviewed as part of the investigation process.

I note that the complainant was advised on 1st of February  that the investigation had concluded and that his suspension was lifted and that he could then return to work once he was medically fit to do so.

I note that the complainant has stated that he was not told at this point what the outcome of the investigation was or whether Mr. B was returning to work but that he was told that he could return to work.  The complainant told the hearing that he only received the investigation report on foot of a data access request.

In considering this matter I note that the complainant advised the hearing that the incident on 20th of December had a dramatic effect on him and that he had for some time afterwards been fearful of encountering Mr. B outside of work.  The complainant advised the hearing that he had been worried that Mr B would come to his house and so he had to get security cameras installed .  Witness for the complainant Mr. Byrne corroborated this evidence. The complainant also advised the hearing that prior to the incident of 20th of December the complainant had been very open about his sexual orientation and about his relationship, but he stated that since the incident he is now afraid of disclosing details of his private life.  The complainant also told the hearing that he had attended his doctor during the period after the incident as he had been unable to sleep at night after the incident.   

The respondent in its submissions and at the hearing stated that the complainant did not at the time make any complaint in respect of the 14th of December incident and that it was not until after the 20th of December incident that he lodged a formal complaint referring to both incidents.

I note that both parties agree that the respondent manger Mr. S had met with the complainant outside of the premises directly following the incident of the 14th of December and that the complainant at this time told his manager about the incident.   It is also clear from the evidence adduced that no action was taken by the respondent after this incident.

It emerged at the hearing that  this was not the first time Mr. B had been involved in an incident with a member of staff and it emerged that he had previously been referred for 8  therapy sessions following an altercation with another staff member in February 2023.

I note that the respondent submits that it could not investigate the 14th of December issue as the issue was not raised with them.    I do not accept that the issue was not raised with them and although the complainant may not have lodged a formal complaint at that time it is clear that he raised the matter verbally with his manager Mr. S.   I am also satisfied that the respondent at this point should have taken some action on foot of the incident especially given that Mr. B had previously been disciplined for an incident where he had been involved in an altercation with another staff member.  The outcome of that process was that the respondent paid for 8 therapy sessions for Mr. B in order to manage his anger issues. 

The respondent advised the hearing that it has a Dignity at Work policy and a Grievance policy which outline a formal and informal mechanisms for dealing with complaints.   The respondent stated that following the incident of the 20th of December it appointed an investigator, Mr. M who carried out an investigation into the matter and produced an investigation report on the 1st of February 2024.  

The respondent submits that during this investigation the complainant was invited to submit his complainant in writing initially and was then called to a number of investigation meetings.   I note that the investigator also interviewed a number of the complainant’s colleagues and that witness statements were taken in this regard.

It is clear from the evidence adduced that Following the incident on 14 December, no action was taken.   Had some action been taken on foot of first incident, the second incident may have been prevented.

In considering this matter I am also conscious that this was not the first incident involving Mr. B and a staff member. 

I note that the respondent in this case seeks to rely on Section 14A (2) which 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 [my emphasis].’

I am satisfied from the evidence adduced that the incident of the 14th of December and the further incident of the 20th of December had the effect of ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for the complainant and although the respondent conducted an investigation and took remedial action following the second incident the actions taken having regard to the particular circumstances fell short of what is required to reverse the effects of such harassment.   

Accordingly, I declare this aspect of the claim to be well founded and I direct the respondent to pay the complainant €12,000 in compensation for the effects of the harassment.

Discrimination in conditions of employment

The complainant submits that he was discriminated against in respect of his  conditions of employment.   In support of this assertion the complainant submits that harassment on the grounds of sexual orientation constitutes discrimination on grounds of sexual orientation.

I find that matters outlined by the complainant have been dealt under the harassment heading  and I have made a finding in favour of the complainant in that regard.

Having considered the totality of the evidence adduced in respect of this claim I can find no evidence of less favourable treatment on grounds of race in respect of his conditions of employment outside of matters which have already been dealt with under the claim of harassment.  Accordingly, I am satisfied that the complainant was not  discriminated against by the Respondent in respect of his conditions of employment.

Victimisation

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

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)      a complaint of discrimination made by the employee to the employer………….

(f)       an employee having opposed by lawful means and act which is unlawful under this Act…….

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

In Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Act to be made out.   It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

The Complainant in outlining his claim of victimisation asserts that the adverse treatment to which he was subjected was as follows

a.            He was wrongfully suspended;

b.            The Respondent refused to meet him off site and he was forced to attend the premises and meet in a room that traumatised him, when he was  uncomfortable and distressed doing so and when his employer was aware of his discomfort and distress, under threat of dismissal or having his wages stopped;

c.            His status was unreasonably manipulated from suspension with pay, to sick leave, adversely impacting his wages;

d.            He was denied the pay rise awarded to his colleagues;

e.        He was chastised for contacting the WRC and discouraged from bringing       a complaint;

f.     He was not advised of the outcome of the investigation or given any information in relation thereto.

The Complainant submits that the above amounts to adverse treatment in response to the following protected acts:

a.            The Complainant made a verbal complaint in relation to the harassment that he experienced on 14 December 2024 and it is submitted that this constituted a protected act within the meaning of the Act.

b.            The Complainant made a written statement on 20 December 2024, in relation to the harassment, verbal abuse and assault that he had experienced; and/or

c.            Prior to 16 January 2024, the Complainant contacted the WRC.

It is submitted that the Complainant experienced adverse treatment as a reaction to the said Protected Acts, either individually or in combination.

In examining the complainants’ allegations of adverse treatment following a protected Act I will deal with each assertion of adverse treatment separately

a.      The complainant asserts that he was wrongfully suspended.

I note that the complainant has taken issue with the fact that both he and Mr. B were suspended with pay after the incident on 20th of December 2023.  Witness for the respondent Mr. S  at the hearing stated that he did not witness the incident but that when he arrived at the premises the complainant and Mr. B were pushing and shoving each other and screaming at each other.   Mr. S added that in circumstances where there were conflicting reports as to what had actually happened with more than one witness stating that the complainant and Mr. B were pushing and shoving each other.   Mr. S advised the hearing that in such circumstances he had no option but to place both parties on paid suspension until evidence was gathered through a fair, thorough & impartial investigation.  The respondent stated that due to the serious nature of the allegations from both parties, where one was blaming the other and there were conflicting reports as to the altercation itself, the Respondent considered it vital that both parties were kept apart, from a safety perspective.    Mr. S also advised the hearing that he had called the guards a number of times as both parties refused to leave until the guards arrived  but Mr. S stated that the guards were busy and had not arrived by  the time the factory was closing and so he had to make a decision and in the circumstances he decided to suspend both parties on full pay pending an investigation.

In examining this matter I note that the witness statements submitted in evidence by both parties support the assertion made by Mr. S that there were conflicting reports about the incident with more than one witness stating that both the complainant and Mr, T were pushing and shoving each other while screaming at each other.   I am thus satisfied that the decision of the respondent to suspend both parties with pay pending an investigation does not amount to adverse treatment for having committed a protected Act.

b.     The Respondent refused to meet him off site and he was forced to attend the premises and meet in a room that traumatised him, when he was  uncomfortable and distressed doing so and when his employer was aware of his discomfort and distress, under threat of dismissal or having his wages stopped;

In considering this matter I note that the complainant was asked to attend a meeting with Mr. M  in the respondent’s premises on the 9th of January 2024.

The complainant stated that he asked if they could meet at a coffee shop instead of going to the factory as he didn't feel comfortable going into the factory just yet.  The complainant told the hearing that Mr. M refused this request and stated that the complainant was failing to follow instructions and if he didn't come to the factory to meet him his wages would be stopped.

The complainant stated that he again told Mr. M that he was uncomfortable going to the factory by himself.  The complainant stated that he then went to the factory and the meeting took place in the room where he had hidden from Mr. B on the 20th of December and stated that he found this very uncomfortable.  

In considering this matter I note that the complainant when asked to attend a meeting in the factory on 9th of January was aware that Mr, B had also been suspended form work and so there was no possibility of him encountering Mr. B on the premises while attending a meeting.   In addition, I note that the complainant has taken issue with the fact that he was suspended at all after the incident submitting that he himself should not have been suspended at all.

The complainant states that he was under threat of dismissal or of having his wages stopped if he did not attend the meeting.   The respondent denies that this was said and told the hearing that he had advised the complainant that if he did not arrive in the next ten minutes he would get on with his day.     I note that the complainant at this time had been suspended with pay and that it was Mr. M s duty to carry out the investigation into the matter complained of.

The respondent in reply to the issue of the meeting being held in the same room as the 20th of December stated that the complainant had expressed that he did not want to meet anyone in the factory and so Mr. M stated that he decided to hold the meeting in this office to facilitate the complainant as it was away from everyone.

I note that the respondent at this point in time was not yet aware of any  complaint to the WRC as the IR claim was only submitted on the 9th of January.   I also note that the protected act being referred to is the complaint in respect of the incident on 14th of December and or the complaint in respect of the 20th of December incident.

 I note that Mr. M at this point in time had not yet received a complaint in respect of the 14th of December but had been appointed to investigate the incident of the 20th of December.     The assertion being made thus appears to be that that the request from Mr. M to attend a meeting in the factory on said date and the refusal of Mr. M to meet at a coffee shop instead of the factory amounts to adverse treatment as a reaction to the complainant having made a complaint in respect of the 20th of December incident.   While I note that Mr. M's refusal to move the meeting to a coffee shop instead of the factory may be viewed as being somewhat inflexible I am not satisfied that it amounts to adverse treatment on foot of a protected act that protected act being the act of submitting a complaint in respect of the 20th of December incident which Mr. M had been appointed to investigate.

c.      His status was unreasonably manipulated from suspension with pay, to sick leave, adversely impacting his wages

I note that the complainant advised the respondent on 29th of January that he was unable to attend the meeting due to sickness and on 30th of January advised the respondent that his doctor had certified him sick for the week thus the respondent was now on notice that at the complainant was on certified sick leave therefore it is not unreasonable for the respondent to move the complainant from paid suspension to sick leave following such notification.   I note the respondent’s evidence that the complainant was provided with sick pay even though he had not yet sent in a sick cert but had advised Mr. M that he had been to the doctor and was certified sick for the next week. 

I also note that it would not have been possible for the respondent to lift the suspension and request that the complainant return to work during this week as they had been notified that he was certified sick by his doctor for the week. 

I am thus satisfied that the decision of the respondent to move the complainant onto certified sick leave  following his notification that he was sick and had been certified as such by his doctor for the week  does not amount to adverse treatment for having committed a protected Act.

d.             He was denied the pay rise awarded to his colleagues;

The complainant submits that while he was on paid suspension during January 2024 his colleagues received a pay rise of €2 per hour which he did not receive.

When asked at the hearing why he believed that the rate of pay had increased to €17 per hour the complainant stated that he had seen an advertisement for his job and that it was advertised at €17 per hour. 

The respondent at the hearing clarified that this was not for the complainants Job nor was it a Dublin based driving job but that attracted a higher rate as it involved driving to Munster.

Having considered this matter I am satisfied that this does not amount to adverse treatment for having committed a protected Act.   

e.      He was chastised for contacting the WRC and discouraged from bringing a complaint;

The complainant advised the hearing that the respondent at the investigation meeting of 16th of January referred to the fact that they had been notified of an IR  complaint lodged by him with the WRC and had questioned why he referred acclaim to the WRC.  The respondent in reply to this at the hearing stated that it had been surprised to receive a complaint from the WRC in respect of an ongoing matter which was still under investigation by the respondent and on which the complainant had not yet received the outcome.  The respondent stated that the internal investigation had not yet been completed, and the respondent stated that it did mention this to the complainant and that the complainants reply to this question was that he had his own reasons for complaining to the WRC.   

In considering this matter I note that the respondent asked the complainant why he had gone to the WRC in circumstances where the internal investigation was still ongoing.  In addition, I note that it is the Commissions practice not to investigate IR claims until internal procedures have been exhausted.  I cannot see how mentioning this or questioning the IR referral amounts to adverse treatment.    I am therefore satisfied that the respondents’ mentioning of this or questions in this regard does not amount to adverse treatment for having committed a protected Act.

f.        He was not advised of the outcome of the investigation or given any information in relation thereto.

I note the complainant’s assertion that he was not advised of the outcome of the investigation or given any information thereto.

I note that the respondent in its submissions had initially submitted that it had provided the complainant with the investigation report on 1st of February 2024  at the same time he was advised that his suspension was being lifted and that he could return to work. 

I note that the complainant was advised on 1st of February that the investigation was completed and that his suspension was being lifted.

I also note that the complainant at this time was on certified sick leave and had advised the respondent of this.  I note that the respondent had advised the complainant that he could return to work once he was fit to do so.

I note that the investigation concluded that Mr. B behaviour towards the complainant was wholly  unacceptable and that could be considered by the company as gross misconduct which may result in the sanction of dismissal.  it was recommended that Mr. B be disciplined for the offence and that this could carry the ultimate sanction of dismissal.

 I am satisfied that the complainant was not made aware of this outcome as he was not provided with the investigation report or its findings.

The respondent in its submissions had initially stated that the complainant was  provided with the investigation report on the 1st of February when he was notified that his suspension was being lifted and he could return to work.

The complainant in his prehearing submissions and in his direct evidence at the hearing stated that he was not notified of the investigation outcome and was not provided with the investigation report by the respondent until he received it following a Data access request.

In considering this matter I note that the investigation outcome found in favour of the complainant.   I also note that the complainant did receive a copy the report on foot of a data access request

The complainant submits that the failure to provide him with the report amounts to adverse treatment stating that without the report  he did not know what he was going back to or if he had been cleared of wrongdoing.   I note however that the respondent did advise the complainant on 1st of February that the investigation had concluded and that his suspension was lifted and he was free to return to work once he was fit to do so. 

The complainant in this case remained on sick leave and resigned his employment on the 8th of February 7 days after the respondent advised him that the investigation had concluded and that he could return to work.  Following this the content of communications between the complainant and respondent centred around the fact that the complainant had stated that he was unable to return to work and had been certified as sick by his doctor and matters relating to sick pay.  The respondent then requested that the complainant submit a sick cert in support of this which the complainant did not do until 5th of February.   I also note that during all of these communications the complainant who had initiated the complaint which was the subject matter of the investigations did not once ask to see the report or enquire about the outcome.  

The complainant submitted his resignation on 8th of February.   

On receiving notification of his resignation, the company reached out to the Complainant and offered to meet him to discuss his concerns in more detail; however, the Complainant never met with the company.

I note that following his resignation the respondent asked the complainant on 3 occasions to reconsider this decision and return to work. Thus, it would have been clear to the complainant from this that he himself had been cleared of any wrongdoing.

The respondent also encouraged the complainant to lodge a grievance if he felt that issues had not been addressed.   

 Thus,  I cannot conclude that the failure to provide the complainant with a copy of the report or its outcome  amounts to adverse treatment on foot of a protected Act/s.

Accordingly, I am satisfied that the complainant was not victimised by the respondent in respect of this matter.

Having considered all of the evidence, both written and oral, adduced at the hearing of this complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Act, 1998, as amended. I find that:　

(i)   the Complainant was subjected to harassment on grounds of his sexual orientation in terms of section 14A of the Act.    Accordingly, I direct the respondent to pay the complainant €12,000 in compensation in respect of the harassment.

(ii)   the Complainant was not discriminated against by the respondent  on grounds of his sexual orientation in terms of section 6(2) of the Act, in respect of his conditions of employment contrary to section 8 of those Act. 

(iii)   the Complainant was not victimised by the Respondent in terms of section 74(2) of the Act.  

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

CA-00062717-001

10/04/2024

The Complainant in this claim alleged that he was refused the right to carry over annual leave that was owing from 2023 to 2024. The respondent submits that this claim relates to two day’s statutory leave where the company could not facilitate the taking of the leave at the time as the Complainant was on paid suspension so the Respondent would like to provide it in payment to the Complainant now.

The respondent at the hearing conceded this claim and offered to pay the complainant in respect of the two days leave.    This was accepted by the complainant at the hearing.

I declare this claim to be well founded and I direct the respondent to pay the complainant the outstanding 2 days’ pay in respect of the untaken annual leave. 

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

CA-00062717-002

10/04/2024

This claim was withdrawn by the complainant at the hearing.

This claim was withdrawn by the complainant at the hearing.   Accordingly, I declare this claim to be not well founded.

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

CA-00062717-003

10/04/2024

This claim was withdrawn by the complainant at the hearing.  

This claim was withdrawn by the complainant at the hearing.   Accordingly, I declare this claim to be not well founded.