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This case Serhat Aksakal v. Kivaway2 Limited trading as the Odeon (ADJ-00053151) concerned a complaint under the Employment Equality Acts 1998-2015 (“the Acts”). The Complainant claimed the Respondent discriminated against him on the grounds of his gender, in circumstances where he was subjected to sexual harassment in the workplace. He also lodged a Payment of Wages claim for unpaid tips.
Facts: The Complainant was employed by the Respondent since March 2022 and at the time of the claim he was a Commis Chef at the Respondent’s busy restaurant. The Complainant alleged he was the target of a crude sexual joke from his co-worker, the Head Chef, Mr. M. He claimed that when he bent down to retrieve something from below the countertop, Mr. M came up behind the Complainant and made a thrusting gesture against him and shouted “yee-haw”. The Complainant told the Workplace Relations Commission (“WRC”) this incident violated his dignity at work and created a degrading, humiliating and offensive environment for him. Mr. M was the Head Chef and therefore above the Complainant in the workplace hierarchy.
The Complainant immediately reported the incident to his line manager, “AM”. The Complainant submitted to the WRC that he was not sent home and instead was obliged to continue working even though Mr. M was in relatively close proximity. However, the Respondent produced a text message thread between AM and her manager R McD wherein he instructed that the Complainant was to be asked to make a statement and to be allowed to go home. According to this text thread the Complainant himself opted to stay working on his shift, albeit in a separate barbecue area.
AM told the WRC that she immediately began investigating the incident, including having a preliminary conversation with Mr. M. The Complainant provided AM with a formal statement one week after making his verbal complaint. The Complainant told the WRC that he never saw any notes of the investigation conducted by the Respondent into the incident and was never kept up to date with the investigation. R McD gave evidence on behalf of the Respondent that he contacted the Complainant via WhatsApp assuring him that they were taking the matter very seriously and a full investigation was underway. He required some clarifications on the Complainant’s statement and met with the Complainant however no notes were taken of this meeting. At the conclusion of the investigation and disciplinary process the Respondent terminated Mr. M’s employment.
Decision: The Adjudicator, Penelope McGrath, noted that the Complainant was critical of the fact that AM did not immediately invite him to make a formal complaint or direct him to the dignity at work policy. However the Adjudicator noted the Complainant was aware there was a dignity at work policy in operation in the workplace, albeit he seemed to suggest in cross-examination that the policy failed to give adequate guidance. The Adjudicator also referred to AM’s preliminary conversation with Mr. M following the incident and accepted it was not necessarily clear to the Complainant at that point that anyone had even talked to Mr. M about it. The Complainant repeatedly stated that he felt that he was not given adequate information about the investigation however the Adjudicator noted the balancing act required to be undertaken by employers in these types of investigations, to ensure that the rights of both the victim and alleged perpetrator are protected appropriately.
The Adjudicator highlighted the direct conflict of evidence regarding the Complainant not going home after the incident and stated that she could not ignore the corroborative nature of the real-time text messages produced by the Respondent. The Adjudicator also noted that the complaint document was well-crafted and that she understands the Complainant may have had the assistance of Chat GPT. The Adjudicator commented that in general she has no issue with this, “save that the Complainant must ensure the language used perfectly reflects what happened”. The Adjudicator referred to the Complainant’s accusation in the complaint document that management had done nothing, when the evidence indicates that management took the matter very seriously. In her findings the Adjudicator noted the investigation involved ten separate meetings with up to seven members of staff. It was put to the Complainant that he was prompted by AI to include this element of his complaint, which was ultimately a misrepresentation of what happened.
On balance, the Adjudicator determined that the claim was not well founded. The Complainant had made out a prima facie case of discrimination, in that he was subjected to an incident with undeniable sexual undertones in the workplace, which can constitute discrimination on the gender ground under the Acts. However, the Respondent took the complaint seriously from the start and the Adjudicator accepted that this was known to be a workplace wherein such behaviour was not and is not tolerated. The Respondent was able to demonstrate that it had taken all reasonable steps to prevent incidents of this nature occurring and responded appropriately to this particular incident.
Takeaway for Employers: This WRC decision demonstrates how an employer may effectively protect itself against possible claims under the Acts. As noted in our article on a WRC decision last year, where €30,000 was awarded in compensation to the Complainant, employers can be held vicariously liable for the actions of others under the Employment Equality legislation when sexual harassment occurs during the course of a person’s employment. However, there is a defence available where an employer can prove they took reasonably practicable steps to prevent the contravening act(s) and responded appropriately to the reported incident(s). In the current case the employer was able to avail of this defence. At a minimum, employers should ensure that they have a dignity at work policy in place which is well communicated to staff and that line managers receive appropriate training on how to respond to complaints of this nature. It is interesting to note that in this case, the Complainant’s knowledge of the Dignity at Work policy seemed to satisfy the pre-incident obligation of the Respondent and that their actions in response to the incident was what defended the case for them.
This decision also highlights the potential impact of the increasingly widespread use of AI tools such as Chat GPT on cases before the WRC. While the use of AI tools may be of assistance to lay litigants before the WRC, particularly where English may not be their first language, issues can arise where the content generated by AI departs from the facts of the case at hand.
Link – https://www.workplacerelations.ie/en/cases/2025/may/adj-00053151.html
Authors – Tara Kelly and Anne O’Connell
30th June 2025
Anne O’Connell Solicitors
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Dublin 2.