RTÉ has been cleared of liability in a €300,000 claim for discrimination by a female journalist over its handling of a sexual harassment complaint by her against a male colleague, both of whom worked night shifts.
The Workplace Relations Commission (WRC) rejected Kasia Czernik’s complaint under the Employment Equality Act 1998 against the broadcaster in which she alleged that she was forced to abandon her career in journalism because of what happened.
Her colleague, Noel Fogarty, was sacked in September 2021 after company investigators found Ms Czernik was sexually harassed by a series of texts, emails and attempted phone calls from 18 to 21 June that year, the tribunal was told.
Ms Czernik maintained RTÉ had discriminated against her on gender grounds by failing to assure her that the harassment would not continue and argued that the company was in breach of the act by refusing to inform her of the disciplinary sanction given to Mr Fogarty.
"My home and bedroom will be open to you," read one message, with another offering Ms Czernik a spare key to his apartment.
"This was ten days before her wedding," her solicitor Barry Crushell told the tribunal.
Ms Czernik’s statement to an RTÉ investigation panel detailed how Mr Fogarty had come to consider her a "close" friend "even though we’d never met outside work", the tribunal was told.
"He told me which female newsreaders he liked best - telling me which had voices he found 'sexy’," she added.
In a legal submission, Ms Czernik’s solicitor Barry Crushell said his client was seeking €300,000 in redress.
Half was for the "mental, emotional and physical impact" of the harassment, he told the tribunal.
The other half was a sum equivalent to five years of her €31,804-a-year salary - the amount of time Ms Czernik had "invested in developing a career" with RTÉ, Mr Crushell said.
"She wants justice after what happened to her," he added.
Mr Crushell said the harassment "changed her and took away her confidence and trust in people" and "ruined her professional career as a journalist" at RTÉ.
The complainant had "worked hard to establish herself" by interning at the broadcaster in 2017, before waiting two years for a position after a successful interview.
She resigned in March 2022.
In evidence, Ms Czernik said she was satisfied with the investigation report produced by RTÉ, but was not made aware of any disciplinary proceedings against Mr Fogarty.
"I only learned from the recent article in the press exactly what happened. I was never completely aware of what happened to him in terms of his work - whether he was suspended or whatever," she said.
"I know it's hard to understand [but] when you’re in a situation like this you need very clear information."
She added that she raised concerns at later meetings about security arrangements for the night shift on the RTÉ campus, which she said had "many ways in and out".
Head of HR for RTÉ News and Current Affairs, Tanya McNulty, said in her evidence that Mr Fogarty was instructed from the outset of his suspension pending investigation not to contact Ms Czernik either directly or through any other colleague.
"We had also removed his [security] tag access so he had no direct access to buildings on the RTÉ site," she added.
Ms McNulty said there had been a series of "check-in" meetings with Ms Czernik going into the autumn of 2021 after the report was issued, and while Mr Fogarty was appealing his dismissal, but as there were still "procedures not complete" she could not give Ms Czernik more information.
She said she and Ms Czernik's line manager, Paul Ferris, could be "categoric that [Mr Fogarty] was no longer employed by RTÉ" ahead of another check-in meeting in December that year, which she added had been attended by the complainant’s solicitor.
Mr Crushell submitted that the notes taken at these meetings had not been circulated to his client for comment as minutes.
Ms McNulty said she was "surprised" by Ms Czernik’s resignation the following March.
Under cross-examination from Mr Crushell, she accepted the complainant had said she found it difficult to be on the RTÉ campus at night after the harassment.
Mr Fogarty lost his job after an RTÉ HR inquiry concluded that Ms Czernik had been sexually harassed by a series of texts, emails and attempted phone calls, the tribunal was told.
Mr Crushell said RTÉ "failed in its duty of care" towards his client.
"We would contend that victims of sexual harassment have a right to know the consequences a harasser faces," he said.
"This is a claim Ms Czernik has made for €300,000 compensation, far in excess of the jurisdiction. It is a claim that must fail," said Senior Counsel Mairead McKenna, who appeared for the broadcaster instructed by the legal firm Arthur Cox.
Ms McKenna said the information that Mr Fogarty was no longer working with RTÉ had been communicated in a "subtle" manner by Ms McNulty several months before the complainant’s resignation, and that her solicitor should have been able to "read between the lines".
Counsel argued the broadcaster had acted appropriately in the matter by investigating the complaint and taking all reasonable steps to prevent more harassment, and so could not be held liable for the effects of discrimination.
In her decision on the case, WRC adjudicator Maria Kelly agreed.
"I find that while the complainant was sexually harassed she was not discriminated against by the respondent," the official wrote.
The tribunal heard during Mr Fogarty’s unfair dismissal claim last November that Mr Fogarty initially told internal investigators that he would not have considered the messages to be of a sexual nature but accepted they were "inappropriate".
He ultimately accepted the findings of RTÉ’s investigation report and asked the broadcaster to "consider alternatives to the most punitive of sanctions".
Mr Fogarty told the tribunal on that occasion: "A large part of my transgressions were due to excessive consumption of alcohol over the period."
He withdrew his claim midway through the evidence of RTÉ’s first witness, saying he was finding the hearing "very stressful" and that he was not prepared to continue.
