EDA2632

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00048789 (CA-00060128-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 21.02.2025.

Labour Court hearings took place on 26.05.2026.

The following is the Determination of the Court:

DETERMINATION:

Background

1. This is an appeal by Maria Puisor of a decision of an Adjudication Officer ADJ-00048789 under the Employment Equality Acts 1998 – 2021 (“The Act”). The Adjudication Officer held that Maria Puisor had not established a prima facie case that she was subject to discrimination on the gender ground.
2. Maria Puisor appealed that decision to the Labour Court on 21 February 2025, together with two linked appeals (ADE/25/33 and HSC/25/3) which were scheduled for hearing by the Labour Court on 26 May 2026. ADE/25/33 is a complaint relating to equal pay. The appeal of a decision made under the Safety, Health and Welfare at Work Act 2005 was withdrawn. At the Labour Court hearing on 26 May 2026, the Court heard submissions from both parties and witness testimony from Maria Puisor.  No witness testimony was proffered on behalf of Automatic Amusement Ltd.
3. For ease of reference the parties are given the same designation as they had at first instance. Hence Maria Puisor is referred to as “the Complainant” and Automatic Amusement Ltd is referred to as “the Respondent”.

Summary of Complainant’s Position

4. The Complainant was employed as a croupier and worked at the Respondent casino from 29 September 2016 until she resigned on 26 November 2023. She was subject to gender-based discrimination at work.
5. During her employment, like many other female employees, the Complainant routinely received less favourable treatment than male employees. She was subject to physical and verbal abuse from patrons of the casino and afforded little protection from management. During a seven-month period ten female employees left the casino, whereas no male employees resigned during that time.
6. The Complainant was routinely exposed to physical and verbally abusive patrons. The Respondent was aware that one customer Mr Y was a serial offender, yet they prioritised patrons who spent money over the welfare of employees. When the Complainant was hit by Mr Y after he lost a big bet at the table, the Respondent moved the Complainant to another table, replacing her with another croupier. Mr Y was not reprimanded for his behaviour. The Respondent made no enquiry as to the health or welfare of the Complainant.
7. When Mr Y hit the Complainant across the back of the head in front one of the managers and called the Complainant stupid, the Respondent did nothing. Despite the Complainant requesting that the Duty Manager check CCTV cameras, he was indifferent and despite an undertaking to ask Mr Y to apologise to the Complainant, he was not reprimanded for his behaviour. This was reflective of the Respondent’s custom and practice to treat female employees less favourably than male employees. The Respondent did not bar/stop patrons from entering the premises, at the expense of the safety of female employees.
8. When the Complainant requested a meeting with management to discuss the matter, the General Manager told the Complainant she must have said something to Mr. Y. When they watched the CCTV footage of Mr Y. hitting the Complainant across the head, the General Manager downplayed the incident and stated, “your head did not move”. A week later, Mr Y followed the Complainant around the casino and repeatedly called the Complainant “stupid, stupid, stupid.” The General Manager was on notice of the incident and told the Complainant “this is not a church, if you don’t like it, you can leave.” Eventually, the Respondent asked Mr Y to stay away from the Complainant’s table. When she did not allow Mr Y deal at her table she was asked to resign. The Complainant refused to resign.
9. A week later, Mr Y. followed the Complainant into the ladies toilet and intimidated her. She felt scared, insecure and unsupported. No action was taken by management. The General Manager defended Mr Y’s action on the grounds that he spent a lot of money in the premises. After he checked the CCTV, the Complainant was invited to attend an ‘investigation’ in a cramped office in the presence of three men. She was coerced into signing papers which documented factual inaccuracies, about the incident outside the ladies toilet.
10. The Complainant was threatened by patrons when leaving the premises and needed security to walk her to her car. This was not an issue for male employees.
11. The final incident occurred in October when the Complainant made an innocent mistake in moving the winning pot in the direction of the wrong patron. The winning pot should have been moved towards another patron. The patron got aggressive and threatened the Complainant. The Complainant ‘splashed the pot’ in his direction.The Complainant received her final warning for this behaviour.
12. By November 2023, the Complainant’s position had become untenable and she resigned. She had raised complaints about verbal and physical abuse from patrons, only to receive a final warning from a kangaroo court. Her resignation was accepted. A few days later they asked her to change her mind and stay. The Complainant resigned to protect her physical and mental health.

Summary of Respondent’s Position

13. The Respondent rejects the assertion that the Complainant was subject to ongoing and continuous gender-based discrimination at work. In her original complaint to the WRC, the complaint identified was on the ground of Race. The claim in relation to Gender was submitted orally on the day of the Hearing at the WRC, when the claim of discrimination on the ground of Race was withdrawn. The Respondent’s original complaint did not include complaints of harassment and or sexual harassment. The complaint was not properly before the WRC and therefore is not properly before the Court. Furthermore, all issues put forward by the Complainant are either without dates or identified as having dates that fall outside of the reference period. Therefore, the complaint is out of time.
14. The Complainant has failed to establish a prima facie case that would transmit the burden of proof to the Respondent. The Complainant’s submission does not amount to speculation it is merely a malicious complaint unsupported by evidence and devoid of merit.

There is zero evidence of any discrimination intentional or otherwise, on the part of the Respondent. There are no facts from which discrimination can be presumed. The Complainant adduced not a shred of evidence that links the decision to any form of Discrimination. The claim should be dismissed as not well founded on that basis.

15. The Complainant asserts that the Respondent took no action in relation to an incident with Mr. Y. This is untrue. The Respondent met with the Complainant on three occasions to discuss the situation. On 22 March 2023 the Complainant was informed that Mr Y had been barred because he would not apologise for his behaviour. The Complainant was asked what else the Respondent could do to support her, her response was “nothing”.
16. The Complainant refers to an incident when she met this customer when “leaving” the toilet. There are significant differences in the accounts put forward by the Complainant, which call into question the veracity of her complaint. There is no evidence that the behaviour of which the customer is accused is connected to or because of her gender.
17. The Complainant was the subject of several customer complaints and was a difficult and challenging individual to manage. She was issued with an informal warning for poor customer service on 28 June 2022. She was issued with a Final Written Warning on 22 November 2023. The complaints are frivolous, vexatious and an abuse of process.

Testimony

18. The Court heard testimony from the Complainant. No witnesses were proffered on behalf of the Respondent.

Evidence of Complainant

19. The Complainant was forced to resign as there were a lot of sexual jokes from customers and management, as well as aggressive behaviour with customers throwing chips. The work environment was stressful, as customers used alcohol and drugs and could be very aggressive when losing money. The Complainant raised her concerns with the General Manager and asked to speak with HR. There were no health and safety procedures in place. She never saw a policy on bullying and harassment in the workplace.
20. When the Complainant was hit by a customer (Mr. Y) no action was taken. The same customer later followed her into the ladies toilet. The General Manager blamed the Complainant and told her not to wear make-up. While Mr Y. was not allowed to play at the Complainant’s table anymore, the situation continued as he was allowed to remain on the premises.
21. On 24 January 2023, the Complainant reported an assault by a customer to the Respondent by email. The customer had lost a lot of money playing poker and was so upset that he hit the Complainant. No action was taken by the company.
22. Following an incident on 3 March 2023, the Complainant emailed management on 10 March 2023. The same customer had approached her table and when she asked a manager what to do, his response was “do the fuck what you want”. A few minutes later, Mr Marcin called her into the office and asked for her resignation. He said that he had enough of her. No one apologised or came to speak with her about the abuse.
23. On many occasions, the security guard had to follow her outside when she left the workplace, as there were customers waiting outside.
24. The final incident occurred after the Complainant made a mistake and pushed the winning pot to the wrong customer. The winning customer became very angry and stood up, pushing his chair and raising his hand. The Complainant pushed the pot towards him in not a nice manner. The Complainant attended an investigation meeting on 1 November 2023 and was given a Final Written Warning. She was not given an opportunity to reply to questions at the meeting and was only allowed give “yes” or “no” answers. After that, she left the employment because she did not feel safe in the workplace anymore. She was subject to sexual jokes and physical abuse. Her mental health suffered.
25. Under cross examination, the Complainant said that she raised issues with management many times but accepted that her email in January 2023 was the first time she made a written complaint. She said that she was familiar with the grievance and disciplinary process. She accepted that she was accommodated when she wished to change her working hours, to undertake a course.
26. The Complainant accepted that she had no evidence to support her assertion that during a seven-month period during her employment ten females left the employment, whereas no males resigned during that time. She accepted that there was no witness to support her contention that she was threatened by patrons in the car part or about her assertion that she needed security guards to accompany her to the car park.
27. The Complainant accepted that her evidence primarily related to the behaviour of two customers, despite asserting that she was subject to ongoing mistreatment throughout her employment. She could not remember the exact date when the abuse occurred.
28. In reply to questions about the incident with Mr Y, the Complainant said that the Duty Manager was not on the floor at the time but was aware of the incident, as it could be seen on the cameras. The customer was barred from the Complainant’s table, but not from the casino. When she told the General Manager that she did not feel protected or secure in the workplace, he told her to be strong and that they did not work in a church.
29. The Complainant acknowledged that meeting notes dated 22 March 2023 reflect that welfare meetings were conducted after both incidents. She said that she was coerced into signing the meeting minutes and, in her view, they were not welfare meetings.
30. The Complainant accepted that the Respondent eventually told her to stay away from that customer, but that he was allowed to remain on the premises. She accepted that she had the option to deal customer out, if she did not want to deal with them.

The Complainant could not recall the exact date when she said that Mr Y followed her into the toilets and intimidated her.  It was about one week later.   She disagreed with the meeting note that recorded that the interaction happened outside the toilets. When asked why she never mentioned anyone using bad language in her email complaint to management on 10 March 2023, the Complainant said that she did not want to use swear words in an email.

31. The Complainant accepted that she had “splashed the pot” at a customer, which is a term used when the chips are not pushed in not a nice way towards someone. She said that she was stressed and terrified at the time. She received a Final Written Warning following that matter.

Relevant Law

32. The definition of discrimination at Section 85(A) of the Act provides as follows

(4) In this section ‘discrimination’ includes—

                  (a) indirect discrimination,

                  (b) victimisation,

                  (c) harassment or sexual harassment...

The definition of harassment is contained at Section 14A of the Act which provides: -

(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,

                 (a) 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.

                 (b) 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.

These provisions must be read in conjunction with Section 15 of the Act which fixes an employer with vicarious liability under the Act for the wrongful acts of an employee committed during that employee’s employment. Section 15 provides as follows: 

                  (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's                                        employer, whether or not it was done with the employer's knowledge or approval.

                  (2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings                               brought under this Act, be treated for the purposes of this Act as done also by that other person.

                  (3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that                           the employer took such steps as were reasonably practicable to prevent the employee —

                  (a) from doing that act, or

                  (b) from doing in the course of his or her employment acts of that description.

Time limits and Continuing discrimination

                  Section 77(5)(a) of the Acts provides: -

                  Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence                      of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

                  Section 77(6A) provides: -

                  For the purposes of this section —

                  (a) discrimination or victimisation occurs—

                  (i) if the act constituting it extends over a period, at the end of the period,

Section 85(A) addresses the burden of proof as follows:

                  85A.— (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.

Deliberations of the Court

Preliminary matters – Jurisdiction

33. The Respondent raises a preliminary matter relating to the Labour Court’s jurisdiction to hear the complaint, as it submits that the appeal is not properly before the Court. The Respondent contends that (i) the original complaint lodged to the WRC was made on the Race ground and was not the Gender ground, (ii) the original Complaint did not include allegations of Harassment and/or Sexual Harassment and (iii) a complaint in relation to Gender was submitted orally on the day of the WRC Hearing, when the claim of discrimination on the ground of Race was withdrawn.
34. The Court makes no comment on what did or did not happen at the WRC hearing. The Labour Court derives its jurisdiction on appeal from an Adjudication Officer decision and hears the matter on appeal on a de novo basis. It has no remit to examine any findings or decisions made by the Adjudication Officer. In this case, the Adjudication Officer made a finding that the Complainant had not established a prima facie case of discrimination on the gender ground and, therefore, found that she was not discriminated against by the Respondent. The Complainant has appealed that decision to the Labour Court. The Court’s jurisdiction is confined to considering an appeal of that decision.
35. At the outset of the hearing, the Complainant’s representative confirmed that the sole matter before the Court was a complaint of discriminatory treatment on the gender ground.

Time Limits

36. The relevant period for consideration by the Court in the first instance, having regard to the time limits set out at s.77(5)(a) of the Act, is the six-month period before the Complainant lodged her complaint to the WRC, which in this case is the period from 21 May 2023 to 20 November 2023.
37. It is for the Complainant in the first instance to raise an inference of discrimination in the cognisable period for the complaint before the burden of proof shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Should the Court find an act of discrimination with the six-month cognisable period for the complaint, it is open to the Court to consider if acts prior to the cognisable period are part of a continuum of discriminatory behaviour, which might, in such circumstances, be regarded as breaches of the Acts.

Burden of Proof

38. The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in its determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.

If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

39. In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

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

40. To raise an ‘inference’ of discrimination on the gender ground the Complainant must prove the primary facts upon which she relies. It is only if this initial burden is discharged that the burden of proving that there was no discriminatory treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
41. In this case the Complainant contends that she was subject to discriminatory treatment on the gender ground as she was subject to ongoing physical and verbal abuse in the workplace.

The act of discrimination alleged, which falls within the relevant six-month period for initial consideration by the Court, relates to an incident in the workplace on 14 October 2023.

42. The Complainant’s evidence was that on that day she made a mistake at work when she pushed a winning pot to the wrong customer, following which the winning customer became “very angry and stood up, pushing his chair and raising his hand”. The Complainant’s evidence was she was both “stressed” and “terrified” by the customer’s behaviour. Her reaction to his behaviour was to “splash the pot” towards him, which meant that the winning chips were scattered. She accepted that her response to his behaviour was inappropriate.
43. In Nail Zone Ltd v A Worker EDA1023, the Labour Court stated:

                      “The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and                              creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at                                    paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the                                      Complainant, it constitutes harassment for the purpose of the Acts.”

44. Harassment is clearly defined as “unwanted” conduct from the potentially subjective viewpoint of the recipient. It is clear from the undisputed testimony of the Complainant that the incident on 14 October 2023 involved physically threatening and abusive behaviour by a male customer. The Court found the Complainant to be a credible and convincing witness. The Court accepts her evidence, that she was “very scared” at that point in time.
45. From the evidence presented, the Court is satisfied that the treatment to which the Complainant was subjected by a customer on 14 October 2023 was unwanted by her and had the effect of creating an intimidating, hostile, degrading, humiliating and offensive work environment. A single complaint of harassment can breach the Act. However, the Act does not apply to a generalised bullying or harassment claim which has no link to the discriminatory grounds. Accordingly, the behaviour of the customer on 14 October 2024 constitutes “harassment” that falls within the provisions set out at section 14(A) if, and only if, that treatment was related to the Complainant’s gender.
46. The Complainant’s contends that she was subject to an ongoing pattern of gender-based physical and verbal abuse in the workplace. Her evidence was that she repeatedly raised concerns with management about that matter and no action was taken. The Complainant relied on correspondence detailing her complaints of verbal and physical abuse and intimidation by customers to ground her complaint.
47. On 26 October 2023, when the Complainant by email accepted an invitation to attend an investigation meeting into the incident on 14 October 2023, she stated “I request the presence, if possible, of a HR representative, so that I can understand my right in case of abuse or aggression, which have occurred but are not mentioned in the invitation letter (sic)”.
48. The Respondent acknowledged that the work environment was difficult when it issued the Complainant with a Final Written Warning for “splashing the pot” at a customer. In correspondence, dated 22 November 2023, the Respondent stated: - “While I appreciate that some client situations can be challenging it is always a requirement to remain calm and professional when addressing clients.”
49. In her letter of resignation a few days later (26 November 2026) the Complainant refers to “the presence of aggressivity” and “an unsafe atmosphere” in the workplace, which she says she brought to the attention of management on multiple occasions.
50. Much of the other correspondence relied upon by the Complainant to ground her complaint falls outside the timeframe for initial consideration by the Court when assessing if a prima facie case of discrimination has been established. While the Court cannot consider the content of that earlier correspondence Court - when assessing if a prima facie case has been established - of relevance to its consideration is the fact that the Respondent does not dispute that the Complainant made several complaints to management about poor treatment by male customers during 2023. Its position is that the treatment was not linked to any of the discriminatory grounds.
51. The Complainant’s credibility was robustly challenged under cross examination. She accepted that she could not provide dates for all the abuse she alleged. She accepted that she had no corroborating evidence to support her testimony that a large cohort of females left the employment over a seven-month period or that she was threatened by patrons in the car park and needed security guards to accompany her off the premises at night.
52. The Court found the Complainant to be a credible witness. When asked why not refer to the use of bad language by customers in her emails of complaint to management, she said that she did not wish to use swear words in an email. The Court found her evidence on that matter convincing, as she sought permission at the hearing to repeat the bad language alleged.
53. Notwithstanding a lack of corroborating evidence in relation to certain allegations made by the Complainant, the Court is satisfied having regard to the evidence tendered that the Complainant repeatedly raised concerns about her physical safety in the workplace. The Court accepts her uncontested evidence about her working conditions, which the Court is satisfied amounted to a hostile and aggressive working environment.
54. Based on that uncontested evidence, the Court is satisfied to conclude that the hostile and threatening behaviour directed at the Complainant by a male customer on 14 October 2023 was because she was a woman. The Complainant had raised ongoing concerns about an aggressive and hostile work environment and abuse from male customers. The Court is satisfied because of the evidence of the Complainant, and on the balance of probabilities, that the customer would not have acted in such an abusive, aggressive and intimidatory way with a male employee of the Respondent.
55. To establish a prima facie case, the Complainant does not have to prove that discrimination on the gender ground occurred, only that it is a likely explanation for the facts presented. The Court in this case is satisfied that the Complainant has adduced sufficient evidence, on the balance of probabilities, from which a prima facie case of discrimination on the gender ground in relation her working conditions can be inferred. Accordingly, the Court finds that the Complainant has established a prima facie case that she was subject to discriminatory treatment on the gender ground when she was subject to harassment and an ongoing pattern of gender based physical and verbal abuse in the workplace.
56. Where a Complainant succeeds in raising an inference of discrimination, the burden of proving the absence of discrimination then passes to the Respondent. The Respondent in this case denies that the Complainant was subject to an ongoing pattern of gender based physical and verbal abuse in the workplace.
57. No evidence was presented by the Respondent to refute the Complainant’s assertion that she worked in a hostile and aggressive working environment. The Respondent accepted that the Complainant made several complaints about interactions with customers after she was subject to physical assault, intimidation and verbal abuse. Accordingly, the Court is satisfied that the Respondent was aware that the Complainant was subject to harassment.
58. An employer can avoid liability for the harassment of an employee in the course of employment, by making out a defence provided for at Section 14(2), if it can establish that it took reasonably practicable steps to prevent the harassment, or where harassment took place, to prevent the victim from being treated differently and to reverse its effects. In this case, the Respondent submits that it conducted welfare meetings with the Complainant and barred certain customers from playing at her table.  The Complainant’s uncontested evidence was the meetings conducted could not be considered welfare meetings and the Respondent took little or no action to protect her safety in the workplace. There was no evidence of the existence, at the time the harassment occurred, of an anti-harassment policy which had been effectively communicated to the employees.
59. The Court is satisfied on the uncontradicted evidence presented that the Complainant was subjected to harassment on the gender ground while in the employment of the company. The fact that the perpetrators of the harassment were customers rather than employees is irrelevant to the Court’s considerations, since they were on the casino premises with the agreement of the Respondent who has a duty to protect workers from discriminatory treatment during the course of their employment.
60. On the facts presented, the Court finds that the Respondent has failed to rebut the inference that the Complainant was subject to discriminatory treatment on the gender ground when she was subject to aggressive and intimidating behaviour by male customers at her workplace. The Court finds that the Respondent failed to adequately protect the Complainant against gender-based harassment and so is liable for the discriminatory treatment suffered by her on the gender ground
61. The Court finds that the complaint of discrimination on the gender ground is well founded.
62. Any award of compensation for the effects of acts of discrimination must be proportionate, effective, and dissuasive. Based on the submissions and evidence tendered, the Court directs the Respondent to pay the Complainant €20,000 in compensation.

Finding

63. The Court finds that the Complainant was subject to discriminatory treatment on the gender ground when she was subject to harassment in the workplace by male customers. Accordingly, the complaint that she was subject to discriminatory treatment is well founded.

The determination of the Adjudication Officer is set aside. The Court directs the Respondent to pay the Complainant €20,000 in compensation.  The Court so determines.   

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
17/07/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Amy Leonard, Court Secretary.