The owner of a business selling African foods in Dublin who was accused of regularly grabbing a male employee’s testicles and bottom has been ordered to pay his former staff member compensation of over €19,000.
The Workplace Relations Commission ruled that Tom O’Sullivan – who runs Tom’s Lucky Trading in Goldenbridge Industrial Estate in Inchicore – had frequently sexually harassed his former worker, Paul Uzell.
The complainant claimed Mr O’Sullivan would touch him inappropriately on almost a daily basis as well as making sexually suggestive comments to him – allegations which were firmly denied by the businessman.
Phone recording
However, the WRC said there was a phone recording which demonstrated “a manager who was clearly expressing himself in a very overt, sexual manner” and it found there was “a prima facie case of ongoing and sexual harassment.”
It ordered Mr O’Sullivan to pay his former employee compensation amounting to €19,316 – the equivalent of six months pay.
At the same time, the WRC rejected a separate claim by Mr Uzell, who worked as a forklift driver with Tom’s Lucky Trading since October 2019, that he was unfairly dismissed from his job.
Mr Uzell had claimed he was sacked on May 5th, 2021, for stating that his employer’s partner had been working without a visa and for asking for time off to attend a funeral.
He told the WRC that he was wrongly accused about a shortfall of around €54 in daily cash takings at the end of April 2021.
A few days later, he claimed he sought time off work to visit his uncle who was gravely ill, but Mr O’Sullivan disapproved of the short notice.
Mr Uzell said exchanges at a meeting he had with his employer on May 5th 2021 became aggressive after the issue of the lost money was raised again, and he asked for time off to attend his uncle’s funeral.
The forklift driver maintained he was threatened that he need not come back to the business if he attended the funeral.
Mr Uzell claimed there were further heated exchanges during which he was told to leave that he took to be a summary dismissal.
Missing money
In evidence, Mr O’Sullivan said that Mr Uzell told his colleague, who is the owner’s partner, on May 5th, 2021, that he was unhappy about the situation with the missing money.
The businessman admitted they had another conversation about the issue which became “heated and abusive.”
Mr O’Sullivan, who is in his 70s, said it was intimidating as Mr Uzell pushed his chair in anger.
He said Mr Uzell left the premises which led him to believe that the worker had resigned.
Mr O’Sullivan denied that Mr Uzell had experienced inappropriate touching and unwanted verbal and non-verbal contacts which violated his dignity at any time while he was working with Tom’s Lucky Trading.
He claimed the complaint against him was “opportunistic” and was never raised by Mr Uzell during his employment with the business.
The WRC adjudication officer, Brian Dalton, said the case originated from “a charged and highly emotional atmosphere in a relatively small business concerning missing money and trust.”
Mr Dalton said a previously good working relationship between the two men became strained over a relatively short period due to the missing money and the fact that it appeared Mr Uzell had been reported on by the owner’s partner.
He said a phone recording of one incident between the two men clearly inferred “a highly sexualised behaviour event at work.”
Mr Dalton acknowledged that the recording showed Mr Uzell laughing out loud and enjoying what would be viewed as “inappropriate behaviour.”
Work environment
However, he said evidence in particular from the cross-examination of Mr O’Sullivan showed that such conduct was more than a single event.
“This working environment could be characterised by frequent and ongoing conduct that was sexual in expression and conduct,” said Mr Dalton.
He noted that Mr O’Sullivan had argued that such conduct was not unwanted and was encouraged and seen as funny, but Mr Uzell claimed conduct such as touching his bottom and testicles was unwelcome.
Mr Dalton ruled that Mr Uzell did not suffer discrimination on grounds of gender or sexual orientation but that he had suffered sexual harassment.
He accepted that the line between what Mr Uzell found funny and offensive had been crossed.
Mr Dalton said the complainant’s evidence that Mr O’Sullivan had touched his bottom and testicles was credible and that he had found such conduct, which occurred frequently, offensive and unwelcome.
While it was claimed that Mr Uzell was only raising the sexual harassment because of his alleged unfair dismissal, Mr Dalton said it did not negate the fact that continuing sexual harassment had occurred.
“It was demeaning and was unwelcome and frequently crossed personal boundaries to make it a degrading and offensive working environment,” he added.
The WRC found that there were no policies or procedures in place at Tom’s Lucky Trading that would ensure such behaviour was sanctioned.
However, Mr Dalton found that “on the balance of probabilities” Mr Uzell had resigned from his job after “highly charged and hostile exchanges” and was not fired as he had claimed.
The WRC accepted Mr O’Sullivan’s evidence that his chair was pushed violently across his office and the evidence of his partner that Mr Uzell was highly hostile towards her.
Mr Dalton said her evidence was also credible that Mr Uzell had threatened to report that she was allegedly an illegal worker solely because she was perceived as having reported on him in the dispute about the missing money.
He believed the combined effect of the allegation about the missing money, the perception that he had been reported by his employer’s partner and the family bereavement had given rise to a belief by Mr Uzell that he was being unfairly treated.
However, he said how that grievance was played out was unacceptable as Mr Uzell’s conduct was “highly aggressive” and could have amounted to an allegation of gross misconduct that required investigation.
