RTÉ has been cleared of liability in a €300,000 claim for discrimination over its handling of a sexual harassment complaint against a night-shift radio news anchor by his younger colleague.
The Workplace Relations Commission (WRC) rejected multimedia journalist Kasia Czernik’s complaint under the Employment Equality Act 1998 against the public service broadcaster in which she alleged she was forced to abandon her career in journalism because of what happened.
Her fellow night-shift news anchor, RTÉ veteran 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 Friday 18th to Monday 21st June that year, the tribunal was told.
Ms Czernik maintained RTÉ had discriminated against her on gender grounds by failing to assure her the harassment would not continue and argued that RTÉ was in breach of the act by refusing to tell her about the disciplinary sanction imposed on Mr Fogarty.
Your work questions answered: Can bonuses be deducted pro-rata during a maternity leave?
Palantir, company at centre of row surrounding TD Eoin Hayes, is no stranger to controversy at home or abroad
Tips for avoiding a January credit-card hangover
Can I work for my foreign employer from my home in Ireland?
“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.
The cost of climate change: ‘almost like driving another budget through public finances’
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, Mr 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,” Mr Crushell told the tribunal.
He 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 had 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,” Ms Czernik said.
“I know it’s hard to understand [but] when you’re in a situation like this you need very clear information,” she said.
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 said.
She 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 Ms Czernik 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 investigation 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 Mairead McKenna SC, who appeared for the broadcaster instructed by 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 – asking 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.
