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WRC Finds Former Employee was Sexually Harassed, but Caps Award at €13,000

The Workplace Relations Commission (“WRC”) in Jasmine Olaru v Remo Foods Limited t/a Domino’s Pizza (ADJ-00044923) found that the Complainant was sexually harassed and discriminated against on the basis of her gender during her employment with the Respondent. Her victimisation complaint was also upheld.

Facts: The Complainant worked as Floor Staff for the Respondent starting on 9th February 2022, but she resigned later that year. She complained that she was discriminated against on the grounds of gender and age; harassed; sexually harassed; and victimised during her employment. It was submitted that she “suffered a continuum of discrimination throughout her employment”, with the last incident of discrimination having occurred on 19th September 2022.

The Complainant argued that as her evidence was uncontested and because the Respondent did not provide any witness to rebut her evidence, an inference of discrimination must be inferred and accordingly she met the burden of proof under section 85A of the Employment Equality Acts. It was submitted on her behalf that as the discrimination and sexual harassment were perpetrated and/or witnessed by members of management, the Respondent was on notice of same.

The Complainant gave evidence that when she commenced employment with the Respondent, she was required to sign a number of documents in a short period of time. She told the WRC that her manager told her that she did not need to read anything. The Complainant’s evidence was that did not read the Employee Handbook and she did not know if there was a copy kept in the premises where she worked.

The Complainant told the WRC that the workplace was a very “sexualised environment” in which her male colleagues regularly discussed women and sex. She gave detailed evidence of numerous incidents of discrimination and sexual harassment on the part of the Deputy Manager, shift managers, and male colleagues. She submitted that she spoke to a shift manager in mid-late August about it, but she was told that it was too late for her to make a complaint. The Complainant did not know what to do because it was the Deputy Manager and her shift managers who were sexually harassing her, and she was afraid of the Manager.

The Complainant handed in her resignation to the Manager on 19th September 2022. When he asked her why she was resigning, she said she told him everything.Her evidence was that instead of providing her with the relevant company policy or offering to carry out an investigation, he laughed in her face. The Complainant further told the WRC that after resigning, she was locked out twice, which she regarded as victimisation for the discrimination and sexual harassment she outlined to the Manager.

The Respondent’s position was that it could not investigate a complaint that it was not aware of. The Respondent’s CEO, Mr Bartram, gave evidence that the Respondent had no knowledge of any complaint until a copy of the Complainant’s complaint form was received. The Respondent claimed that it had a “comprehensive and clear” anti-harassment and bullying policy which had been provided to the Complainant. It was argued on behalf of the Respondent that it had fulfilled its obligations under section 14A(2) of the Acts.

Decision: The Adjudicator, Elizabeth Spelman, referred to the defence available to employers under sections 14A(2) and 15(3) in respect of a complaint of harassment and sexual harassment. However, she referred to the Labour Court decision in A Hotel v A Worker EDA0915 which makes it clear that an employer is required to be “proactive as regards the prevention of harassment and sexual harassment; and must show, at a minimum, that there was a clear anti-harassment or dignity at work policy in place, which is effectively communicated to all.” She also noted that management must be trained to recognise harassment and to address incidents of harassment.

In respect of the Complainant’s sexual harassment and gender discrimination complaints, the Adjudicator noted that the Complainant’s evidence regarding the sexualised nature of the workplace was uncontested. She also noted that her detailed evidence of numerous incidents of discrimination and sexual harassment were also uncontested. The Adjudicator was satisfied that the Complainant had established a prima facie case of discrimination. The Adjudicator pointed out that most of the alleged perpetrators of the discrimination and sexual harassment were managers and she was therefore satisfied that the Respondent was on notice of the discrimination and sexual harassment. She was critical of the fact that none of the Respondent’s policies were invoked when the Complainant informed the Manager of the discrimination and sexual harassment on 19th September 2022.

The Adjudicator referred to the fact that despite the Complainant’s detailed written submissions which the Respondent received before the hearing, not one witness was provided by the Respondent to rebut any of the Complainant’s allegations. The Adjudicator was critical of the CEO being the Respondent’s only witness and providing “only high-level information concerning the complaints procedure and an ‘informal investigation’”.

The Adjudicator found that the Complainant could not rely on the defence in section 14A(2) of the Acts as it did not take such steps as were reasonable practicable to prevent the sexual harassment.

The Adjudicator upheld the Complainant’s gender discrimination and sexual harassment complaints. In making her award of compensation, the Adjudicator noted that because the Complainant was not in receipt of remuneration at the date of the reference of the case, and because she was not dismissed from her employment (she resigned), the maximum compensation that could be awarded in accordance with section 82(4) was €13,000. The Adjudicator awarded the Complainant the full €13,000 in compensation. She also ordered the Respondent to review the operation of its harassment and sexual harassment policy within six months of the date of her decision.

The Adjudicator also upheld the Complainant’s victimisation complaint. She referred to her uncontested evidence that she was clocked out on two occasions after handing in her resignation and informing the Manager about the discrimination and sexual harassment, whereas this had never happened before. She awarded the Complainant €3,000 in compensation for the victimisation.

Takeaway for Employers and Employees: This decision demonstrates that if an employer intends to dispute that sexual harassment took place, they will be expected to have witnesses at the hearing to rebut the complainant’s allegations. Where they do not, the complainant’s evidence will be uncontested, and an Adjudicator is likely to find that a prima facie case has been made out.

The decision is also a reminder of what employers are required to demonstrate if they wish to rely on the defence in section 14A(2) of the Acts. It is not enough for employers to point to a robust sexual harassment policy; employers are required to demonstrate that it was effectively communicated to staff. They should also be able to demonstrate that management was trained in responding to sexual harassment complaints and identifying incidents of sexual harassment. Where a complaint of sexual harassment is made, an employer will be required to demonstrate that it responded to it appropriately and that any complaint was appropriately investigated.

An interesting element of this decision relates to the maximum compensation available under section 82(4). In this decision, the Adjudicator found that the maximum compensation that usually applies in respect of employees or former employees (i.e. up to two years’ remuneration or €40,000, whichever is greater) did not apply to the Complainant because she was not in receipt of remuneration at the time she lodged her complaint, and she had not been dismissed from her employment (she resigned and lodged her complaint after her resignation). In those circumstances, she found that the maximum award of compensation that could be awarded was €13,000 in line with section 82(4).

Link https://www.workplacerelations.ie/en/cases/2024/may/adj-00044923.html

Author – Jenny Wakely

28th June 2024

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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