FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : HARCO INVESTMENTS LIMITED (REPRESENTED BY CONWAY KELLEHER TOBIN) - AND - LORRAINE O'SULLIVAN (REPRESENTED BY COUGHLAN GRIFFITH & COMPANY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Application for redress under Section 77(2) Of The Employment Equality Act, 1998
BACKGROUND:
2. The Labour Court investigated the above matter on the 31st October, 2003. The Court's determination is as follows:-
DETERMINATION:
Background:
The complainant commenced employment in her capacity as a professional hair stylist with Harco Investment Limited, T/A Wilton Hair and Beauty Salon (the respondent) on or about the 13th July 2002. In December 2002 the complainant informed her employer that she was pregnant at which point she was in her seventh week of pregnancy.
The complainant later developed complications related to her condition, which necessitated absences from work on medical advice. On the 20th February 2003 the complainant was given one weeks notice of dismissal on the stated grounds of unpunctuality and unreliability. The complainant brought these proceedings pursuant of Section 77 of the Employment Equality Act, 1998 (the Act) claiming that in reality the dismissal was on grounds of her pregnancy.
The evidence adduced by the parties can be summarized as follows: -
The Complainant:
The complainant told the Court in evidence that she had seven years experience as a professional hair stylist before she commenced employment with the respondent. She said that she had not experienced any difficulties in her former employments. She told the Court that she adjusted quickly to her employment with the respondent and integrated well with other members of staff. The complainant acknowledged that she was late for work on a number of occasions due to a variety of reasons but that she was rarely more than a few minutes late. She also stated that on each such occasion she telephoned the respondent to advise that she was on her way.
In November 2002 the complainant learned that she was pregnant. She had a previous pregnancy in July 2002, which ended in a miscarriage. On that account her condition needed to be closely monitored.
On or about the first week in December 2002 the complainant was invited to a meeting in a local coffee shop by Ms O’Neill, who was the receptionist with the respondent. The complainant did not know that Ms O’Neill was also the supervisor, as this had not been made known to her. In the course of the discussions Ms O’Neill referred to the complainant’s unpunctuality and advised her to watch her timekeeping. The complainant understood this to be friendly advice rather than a formal warning. She said that her timekeeping did actually improve after this meeting.
Following this meeting the complainant decided to inform her employer of her pregnancy. Some days later she told Ms O’Neill of her condition in the belief that this information would be passed on to the employer. She said that Ms O’Neill’s reaction was fine and that she had congratulated her. During the month of December the complainant developed complications with her pregnancy and was hospitalized on three dates during that month necessitating absence from work. She submitted medical certificates in respect of these absences.
On 20th February 2003 the complainant was approached by Ms O’Neill who handed her a letter informing her that she was to be dismissed. The reason given in this letter for the dismissal was unpunctuality and unreliability. The complainant had no prior warning of dismissal and became extremely upset. She asked the principal of the respondent, Mr Ryan, for an explanation for the dismissal but he refused to discuss the matter with her.
On cross-examination the complainant denied that Ms O’Neill had spoken to her on a number of occasions in relation to her time keeping, following the meeting in the coffee shop. It was also put to the complainant that on one occasion she had missed a hairdressing appointment for a bride and that this had particularly serious consequences. The complainant denied that she had been booked for this appointment.
The Respondent:
Ms Barbara O’Neill gave evidence on behalf of the respondent. She said she was a receptionist at the Salon in which the complainant worked and was also the Staff Supervisor. She told the Court that the complainant was persistently late in the mornings and that this lateness varied from 10 minutes up to half an hour. She said that this unpunctuality predated the complainant’s pregnancy. She said that she had spoken to the claimant on numerous occasions and advised her that her poor time keeping was unacceptable. She also said that at the meeting in the coffee shop, to which the complainant referred in her evidence, it had been made clear to the complainant that her job was in jeopardy if her time keeping did not improve. Ms O’Neill said that following each occasion on which the complainant was spoken to her punctuality improved for a short time but inevitably it fell back to how it had been before.
Ms O’Neill told the Court that on a date prior to the discussion in the coffee shop the complainant had an early morning assignment to style a bride’s hair and she had failed to turn up for work on time. This had particularly serious consequences for the reputation of the salon.
Ms O’Neill said the decision to terminate the complainant’s employment had nothing to do with her pregnancy. Ms O’Neill told the Court the salon often employed women who were pregnant and that a woman had recently been employed who was pregnant at the time and was now on maternity leave.
In cross-examination this witness accepted that there were no records of the occasions on which the complainant was late. She also accepted that no records existed of any verbal warnings having been issued to the complainant. The witness also accepted that the meeting in the coffee shop had taken place after the alleged incident with the bride but that this had not been mentioned to the complainant at that meeting.
Mr. Ryan, the Principal of the business also gave evidence, which broadly corresponded in material detail to that given by Ms O’Neill. However, Mr Ryan appeared to be of the belief that there were two separate occasions on which the complainant had failed to keep appointments in relation to brides. Mr. Ryan confirmed that he had taken the decision to dismiss the complainant. He denied that he was in any way motivated by the complainant’s pregnancy or any matter connected therewith.
Conclusions of the Court:
The first question which arises for consideration is whether the complainant has made out a sufficient case so as to shift the probative burden to the respondent in accordance with European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No.337 of 2001) ( the Burden of Proof Regulations) . These regulations provide that where facts are established by or on behalf of the complainant, from which it may be presumed that there has been discrimination, it is for the other party concerned to prove the contrary.
In this case the complainant was dismissed while pregnant for alleged unpunctuality in attendance at work. The respondent was unable to produce any records to show when the complainant was late for work or the extent of the alleged lateness. Moreover, the complainant never received any written warnings in relation to her conduct and there is no record to substantiate the respondent's claim that she received a series of verbal warnings. In these circumstances the Court is satisfied that the Burden of Proof Regulations are operative and it is for the respondent to prove, on the balance of probabilities, that the complainant's dismissal was unrelated to her pregnancy.
There is a sharp conflict in the evidence given by the complainant and that given on behalf of the respondent as to the extent of the complainant’s unpunctuality in the weeks before her dismissal. The respondent claimed that the complainant’s timekeeping had not improved and that this was the only reason for her dismissal. The complainant maintained that it had improved and that her only absences in this period were pregnancy related and medically certified.
The onus is on the respondent to prove on the balance of probability that the complainant’s dismissal was unrelated to her pregnancy. They were unable to corroborate their assertion that her timekeeping had not improved and that her late attendance had caused difficulties for the employer. The Court finds it particularly strange that the incident involving the bride, which the employer says was of particular gravity, was not even mentioned to the complainant in the interview that Ms. O’Neill had with her in the coffee shop shortly afterwards.
The Court finds that the complete absence of any documentary records of either the complainant’s timekeeping or of warnings allegedly given to her is fatal to the respondent’s case. In the circumstances the Court is not satisfied that the respondent has discharged the onus of proving that the complainant's dismissal was unrelated to her pregnancy. In these circumstances the complainant is entitled to succeed.
Determination:
The Court determines that the complaint herein is well founded. The Court believes that the appropriate remedy is an award of compensation. The Court was informed that the complainant’s pay with the respondent was €7,117.00 per annum. The Court is obliged to provide a remedy, which is not only compensatory, but is proportionate to the wrong suffered by the complainant and has a real dissuasive effect. Having regard to these considerations the Court measures the quantum of compensation, which is appropriate in the circumstances at €10,000. The respondent is ordered to pay the complainant compensation in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
18th_November, 2003______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.