FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : TARA CARROLL(COMPLAINANT) (REPRESENTED BY MICHAEL E HANAHOE, SOLICITORS) - AND - PAUL CULLEN(RESPONDENT) (REPRESENTED BY HIGGINS,CHAMBERS AND FLANAGAN,SOLICITORS)) DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998.
BACKGROUND:
2. The complainant alleges that she was dismissed from her employment on the 11th October, 2001 because she was pregnant. She had worked for the Company as a chef's assistant since 1997.
Management rejects the claim that the worker was dismissed and states that her job remains open for her.
The worker referred a complaint to the Labour Court on the 10th April, 2002, in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 30th October, 2002.
DETERMINATION:
The Facts
The complainant had been employed as a chef's assistant at the Ivy Inn Naas since 1997. The complainant became pregnant in February 2001, notified the manager of her then employers Frankfurter Limited the owners of the Ivy Inn in March 2001 of her pregnancy and arranged to take maternity leave from the 20th of October to the 23rd February 2002. While she was on holiday prior to her maternity leave, Mr Paul Cullen took over the lease of the Ivy Inn from Frankfurter Limited.
After her return from holidays, on the 11th October she was handed a P.45 by Mr Paul Cullen. The P.45 did not have a company name on it but the employers registered number was that of Frankfurter Limited.
The complainant’s case is that she was dismissed because she was pregnant and accordingly was discriminated against within the meaning of Section 77 2(a) of the Employment Equality Act, 1998 (the Act).
Prior to the hearing a dispute arose as to who exactly the complainant’s employer was on the relevant date. At the hearing Mr Cullen accepted that he was the employer on the relevant date and that in taking over the business of the Ivy Inn he took on all the employees including the complainant.
The complainant states that Mr Cullen gave her no reason for her dismissal and it was accepted that there had been no complaints about her work. She claimed that Mr Cullen by stating that "if there was work available after her maternity leave then perhaps she might be taken back" linked her dismissal with her pregnancy.
The complainant stated even after she was handed her P.45 Mr Cullen would not sign the complainant’s form applying for maternity benefit resulting in a substantial delay before she received this benefit.
The complainant was aware that all the staff in the Ivy Inn were issued their P.45 at the same time but they all continued to work in the Ivy Inn with out interruption. She states however that by handing her the P 45 making the statement about work perhaps being available and then refusing to sign her maternity benefits form, Mr Cullen had dismissed her on the grounds that she was pregnant.
The complainant further stated that Mr Cullen in a telephone conversation with her told her she was already on maternity leave when he took over the Ivy Inn. This it was claimed indicated that as far as Mr Cullen was concerned, he never employed her and had no responsibility towards her.
The employer’s case was that he never at any stage dismissed the complainant and at no stage did he indicate to her that he was terminating her contract. He denies suggesting that he had no responsibility for her.
He claims that he did not sign the maternity benefit form for Ms Carroll as he was already experiencing extreme frustration in dealing with Frankfurter Limited her previous employers. Mr Cullen claimed that he never dismissed the complainant, that she had been an employee of Frankfurter Limited that all available benefits had been transferred when he took over the restaurant and that as far as he was concerned she would be remaining on after her maternity leave was finished. He denied telling her that she would be taken back on if there was work available after her maternity leave was up. It was denied that the applicant was prevented from returning to work. In fact she was contacted by the person responsible for rostering kitchen staff in January and offered work, initially from 10 to 3pm.
Mr Cullen who claimed he was acting on behalf of a company called Meyerosa Limited, stated that he took over the business of the Ivy Inn and in doing so took on all the employees including Ms Carroll. There was no intention to dismiss the complainant when she was handed a P 45. He accepted that the complainant was employed by him at the time she was handed the P 45 but gave no evidence as to why this action was taken.
He states that around the end of January the complainant contacted the former chef from Ivy Inn seeking a reference. It was claimed that this showed that Ms Carroll of her own voilition did not return to work, and in requesting this reference had already decided to obtain employment elsewhere.
Findings:
The employers case is that he took the complainant on as an employee when he took on the Ivy Inn and he expected her to return after her maternity leave.
The complainant's case is that she was given her P45 and that she was let go, because she was pregnant and going on maternity leave.
There is a conflict of evidence in relation to whether the employer has said that
(a) he was not responsible for her;
(b) if there was work available when she completed her maternity leave, that perhaps she might be taken back;
(c) the work offered in January/February was extra work or her job back;
(d) it was expected that she would be coming back at the end of her maternity leave.
What cannot be disputed is that the employer gave the complainant a P45, refused to sign her maternity application form, and until just before the hearing refused to accept the fact that he was her employer.
While the employer argued that the issuing of the P45 was not in itself an indication of dismissal, the Court is of the view that he did nothing to counteract the effect of the P45 being given to the complainant. No reassurance was given to the complainant that her position was secure.
The employer argued that he was not in a position to sign her maternity leave form but gave no reasonable explanation for this stance, except for being frustrated with the company from whom he was leasing the premises. If as he claimed he accepted he was her employer the Court finds it strange that he did not sign the form.
Finally, it was only at a very late stage that Mr. Cullen, accepted that he was the employer. The Court is of the view that Mr Cullen may have believed he was not the employer of the complainant and therefore behaved in a manner which allowed him to ignore the normal responsibilities which an employer would have to an employee. However, Mr. Cullen has accepted that during the relevant period he was in fact the employer of the complainant and therefore his actions must be judged in that light. Mr Cullen stated during the hearing that he was acting on behalf of a company known as Myerosa Limited. However, no evidence was adduced to show that Myerosa Limited was the employer of the complainant during the relevant period and therefore the Court finds that Mr. Cullen was in fact the employer.
The Court finds that the actions of the respondent constituted dismissal of the complainant on the ground that she was pregnant . The jurisprudence of the European Court of Justice is quite clear. No employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing. The Court can find no exceptional circumstances in this case, and if there were, they were certainly not notified to the employee in writing.
DETERMINATION
The complainant was discriminated against under section 77 (2)(a) of the Act in that she was dismissed in circumstances amounting to discrimination.
Pursuant to its powers under section 82 of the Act the Court awards the complainant €6,000 in compensation.
Signed on behalf of the Labour Court
Finbarr Flood
17th December, 2002______________________
LW/LWChairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.