Labour Court Database __________________________________________________________________________________ File Number: EED9110 Case Number: EEO9210 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
An alleged constructive dismissal of a worker under Section 27 of the Employment Equality Act, 1977.
Recommendation:
5. The Court has considered at length the written and oral
submissions made by the parties to this case. The basic issue in
question was whether or not the Company treated the worker in a
discriminatory manner because she was pregnant, and if so, was it
to such an extent that she was left with no reasonable alternative
but to leave her employment.
The Court noted that in support of her claim of discriminatory
treatment the claimant, while detailing events which had occurred
between herself and representatives of management also referred to
statements alleged to have been made by management in relation to
previously pregnant employees. Notwithstanding this however, the
Court, after careful consideration of all the facts, found no
evidence that the employer does not provide a working environment
which takes into account the needs of a predominantly female
staff, which would have been a factor supporting the claimants
case, or that the events referred to by the claimant constituted
discrimination.
The Court noted that after the incident of October 8th 1990, which
according to the worker was her principal complaint, the claimant
worked normally until she went on maternity leave on the 23rd
November, 1990. A period of 20 weeks then elapsed before she
signified her resignation as a consequence of that incident. It
is the view of the Court, that for a claim of constructive
dismissal to succeed two factors must exist, namely, that the
terms of a contract, or the employer-employee relationship have
changed to such an extent that the employee has no alternative but
to terminate the employment, and that such termination would occur
at or about the time the contract or the relationship was
frustrated. In this instance the Court does not find that the
circumstances as detailed to it are valid grounds for conceding a
claim of constructive dismissal.
In view of the above the Court determines that the claimants case
fails.
Division: Mr Heffernan Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
EED9110 ORDER NO. EEO1092
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 27, EMPLOYMENT EQUALITY ACT, 1977
PARTIES: A COMPANY
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
(REPRESENTED BY IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION)
SUBJECT:
1. An alleged constructive dismissal of a worker under Section 27
of the Employment Equality Act, 1977.
BACKGROUND:
2. 1. The Company employs 80 workers in 9 outlets retailing
household and clothing fabrics, cloths and ancillary goods.
The worker was employed in the Company's Henry Street store
from April 1987, in the furnishing and household linens
department. The worker resigned with effect from 11th March,
1991.
2. The worker informed the Company in May, 1990 that she was
pregnant. She was at that time working as a sales assistant
in the furnishing section of the department. In July, of
1990, the worker was transferred by the Company to the
household linens section of the Department. The worker went
on maternity leave on 23rd of November, 1990.
3. The Company received a letter of resignation from the
worker, dated 25th February, 1991. The resignation was to
take effect from 11th March, 1991 (the date of expiry of her
maternity leave). The letter of resignation stated inter
alia:-
"After much consideration, I find I cannot face returning
after the extremely upsetting incident which occurred in
my seventh month of pregnancy, caused by your store
manager.
The tragic death of our son has obviously compounded the
distress I felt that day in October and, as I never
received an apology, I find I can neither forgive nor
forget".
4. The Company forwarded a reference on 4th March, 1991. On
20th May, 1991, the Union on behalf of the worker wrote to the
Company. The letter stated that the worker alleged that her
constructive dismissal from employment contravened Section 3
of the Employment Equality Act, 1977 in terms of Section 2 of
the Act. The letter said that the Union may pursue a case to
the Labour Court on the basis that:-
"The worker (named) alleges that the reason for her
dismissal from employment was on grounds of less
favourable conditions of employment during her
pregnancy. In particular she alleges that on the 8th
October, 1990 the store manager (named) was abusive to
her when the worker was attending to her duties while
seated".
5. The Company replied on 8th August 1991, stating that it
did not accept that the store manager had behaved in an
unreasonable manner or adopted an unreasonable attitude
towards the worker. The Company further stated that from its
investigations there was no foundation to any suggestion of
allegations of constructive dismissal and/or discrimination
with regard to the worker.
6. The Union forwarded a notice of complaint to the Labour
Court on 31st July, 1991. A Labour Court investigation took
place on 26th May, 1992 (the earliest date suitable to both
parties).
UNION'S ARGUMENTS:
3. 1. The worker first notified the Company of her pregnancy in
May, 1990 and feels the Company's attitude towards her changed
within weeks. This was first manifested in her transfer from
the furnishing to the bed linen department. This transfer
entailed a drop in wages and much more bending and stooping.
There was also a greater use of glue gum for roller blinds
which was strong and gave off an offensive smell.
2. The worker had the clear impression that the Company
viewed pregnancy as an illness and an inconvenience to
business. The worker heard the supervisor comment on a girl
who was having her second pregnancy (after a miscarriage) that
"she sat down for 9 months". A serious incident took place on
8th October, 1990. The worker was approached by the store
manager who said that customers had complained because the
worker was sitting down. The manager refused to give the
names of the complainants and also refused to put the matter
in writing. The worker explained that she was 7 months
pregnant (details supplied). The manager's response was to
suggest that the worker "go sick if she could not do her
work".
3. The worker was extremely upset and distressed and
following the incident, the Company failed to provide relief
for the worker on a number of occasions when she sought her
official tea breaks or when toilet breaks were necessary.
Several times her cash register broke down and she had to
travel 20 meters, sometimes with swollen ankles, to register
sales. The worker feels that the Company views pregnancy as
an illness. A comment about a worker that "she sat down for 9
months "or the manager being overheard saying that the same
worker should "go sick if she's pregnant" reinforce the
worker's view of the Company's attitude. When the same worker
returned from maternity leave she was transferred to a new
department and had her day off changed. Another worker left
the Company's employment in December, 1990, following a
miscarriage of twins which in the view of the worker concerned
came about as a result of stress while working with the
Company.
4. It is difficult to convey the exact tone and attitude of
the Company towards the worker, who experienced hurt feelings,
anger and frustration. The Company's attempt to explain away
the worker's complaint as a reaction to the tragic death of
her son is clumsy and offensive.
COMPANY'S ARGUMENTS:
4. 1. The Company as a matter of general policy, where a worker
at an advanced stage in pregnancy is working in an area which
may cause her physical difficulty, will facilitate the worker
by moving her, with her agreement, to an area of work which is
less physically demanding. This was done in the particular
case with the worker's agreement and without any objection or
reservation being raised. The work in the household linens
section is less physically demanding than the furnishing
section. The transfer did not result in a decrease in the
worker's wages (details supplied). The intra-departmental
change was effected in pursuance of the general and entirely
positive policy towards pregnant workers.
2. Towards the end of September, 1990, the store manager had
occasion to speak with the worker in connection with her work.
The manager was concerned with the untidiness of the
department and he asked the worker, who was sitting in the
chair provided by the Company, to tidy up while it was quiet.
The worker complained that her ankles were swollen and that
she was experiencing discomfort. The manager suggested that
she should visit a doctor and take sick leave. The
complainant reacted angrily (details supplied). On 6th
October, 1991, the manager received a complaint from a
customer (details supplied) regarding the worker. Arising
from the complaint the worker was approached on 8th October
and denied any knowledge of the allegation. The manager
stated the worker would have to leave her chair to serve
customers when necessary or the chair would have to be moved
out of her immediate work area. The worker continued working
quite normally and without difficulty until she went on
maternity leave. The Company is of the opinion that the
worker has mixed up both incidents in the Union's submission.
3. The worker was a very satisfactory employee who enjoyed
good relations with fellow workers and customers. The Company
specifically denies the alleged comments attributed to the
manager and supervisor regarding the pregnant worker (details
supplied). There is no evidence linking miscarriages to
stress in the workplace. The Company rejects the innuendo.
There was nothing strange about the behaviour of the Company
towards the worker throughout her period of employment,
including in particular the period during her pregnancy
(details supplied). In her complaints, the worker reveals no
discrimination either on the basis of sex and marital status
and/or, either directly or indirectly on the Company's part
towards the worker during her employment with the Company.
The matter complained of in October, 1990 shows a reasonable
response following a specific customer complaint.
4. The worker was not constructively dismissed by the
Company. The worker made no complaint to the Company about
any matter until her resignation. To sustain a claim for
constructive dismissal, the worker's departure must be
proximate to the matters complained of and it must be
sufficiently serious so as to amount to a clear material
breach of one or more of the express or implied terms of her
contract of employment. The worker also has a duty to raise
the complaint with the employer and to afford the employer a
reasonable opportunity of answering the complaint. The
English law case, accepted by the Irish Courts, of Western
Excavating (E.E.C.) Limited v Sharpe (details supplied) is
relevant to this case.
ORDER:
5. The Court has considered at length the written and oral
submissions made by the parties to this case. The basic issue in
question was whether or not the Company treated the worker in a
discriminatory manner because she was pregnant, and if so, was it
to such an extent that she was left with no reasonable alternative
but to leave her employment.
The Court noted that in support of her claim of discriminatory
treatment the claimant, while detailing events which had occurred
between herself and representatives of management also referred to
statements alleged to have been made by management in relation to
previously pregnant employees. Notwithstanding this however, the
Court, after careful consideration of all the facts, found no
evidence that the employer does not provide a working environment
which takes into account the needs of a predominantly female
staff, which would have been a factor supporting the claimants
case, or that the events referred to by the claimant constituted
discrimination.
The Court noted that after the incident of October 8th 1990, which
according to the worker was her principal complaint, the claimant
worked normally until she went on maternity leave on the 23rd
November, 1990. A period of 20 weeks then elapsed before she
signified her resignation as a consequence of that incident. It
is the view of the Court, that for a claim of constructive
dismissal to succeed two factors must exist, namely, that the
terms of a contract, or the employer-employee relationship have
changed to such an extent that the employee has no alternative but
to terminate the employment, and that such termination would occur
at or about the time the contract or the relationship was
frustrated. In this instance the Court does not find that the
circumstances as detailed to it are valid grounds for conceding a
claim of constructive dismissal.
In view of the above the Court determines that the claimants case
fails.
~
Signed on behalf of the Labour Court
Kevin Heffernan
____________________
24th August, 1992. Chairman
J.F./J.C.