FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : PROMOWEAR LIMITED (REPRESENTED BY DAVID POWDERLY SOLICITORS) - AND - MARILYN O RAMOS (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Application for redress under Section 77(2) of the Employment Equality Act, 1998
BACKGROUND:
2. The worker referred her case to the Labour Court on the 27th of February, 2004, in accordance with Section 77(2) of the Employment Equality Act, 1998. Labour Court hearings took place on the 5th of July, 2005, and the 14th February, 2006. The following is the Court's determination:
DETERMINATION:
The Complainant contends that she was dismissed in circumstances amounting to discrimination on grounds of race and gender, contrary to Section 8 of the Employment Equality Act, 1998 and in terms of Section 6 of that Act. The Respondent rejects the claim of discrimination and states that the worker was not dismissed but that she voluntarily resigned from the employment at the expiry of her maternity leave. The worker referred a complaint to the Court pursuant to Section 77 of the Act. The Court has considered the oral and written submissions of the parties to this dispute, together with the witness testimony.
Preliminary point
The Respondent raised a preliminary point that the entity which the Complainant sought relief was not a legal entity as there was no company registered in Ireland under the title “Promowear/Caramba Limited” and therefore, that the complaint should be dismissed on these grounds.
The Court notes that the name on the Complainant’s contract of employment and on the maternity form completed by the employer was “Promowear/Caramba Limited”. Taking this position into account and the fact that the Respondent accepted that they were not disadvantaged in any way by the misnaming of the company, the Court dismisses the Respondent’s objection to the case proceeding.
The Complainant’s case
The Complainant, a Filipino national, commenced employment as an embroidery machinist on 10th July, 2001. In March. 2003, she informed her employer that she was pregnant and would be taking maternity leave. Mr. Wilson, Managing Director of the Respondents, signed her statutory maternity benefit claim form (MB10) on 31st March, 2003, indicating that the worker’s maternity leave would commence from 9th May, 2003, and expire on 8th September, 2003. Counsel for the Complainant explained that the date was incorrect, as 18 weeks if taken, would expire on 12th September, 2003. In fact, Ms. Ramos did not commence her maternity leave until the end of June.
Counsel for the Complainant stated to the Court that the baby was born on 7th August, 2003, and there were complications with the birth.
It is contended that on 10th September, 2003, Ms. Ramos accompanied by her partner, Mr. Panganiban (who had been employed with the Respondent until 15th August, 2003) visited the workplace to request extra unpaid leave for Ms. Ramos. The Complainant contended that when they met with Mr. Wilson, the Managing Director and requested the extra leave, he informed them that neither were connected with the company any longer. As Mr. Panganiban’s employment had been terminated at an earlier date, they understood this to mean that Ms. Ramos was also no longer employed by the Respondents. No explanation was given for her dismissal. The Complainant stated that when Mr. Panganiban sought outstanding annual leave; overtime and reimbursement for the flight tickets to Ireland, these were refused as the Company had previously given them a loan of €1,500.
It was submitted that Ms. Ramos was treated less favourably on grounds of gender and race in that she was summarily dismissed while on maternity leave, a special protected period under law.
Counsel on behalf of Ms. Ramos disputed the contention in the Respondent’s submission that Ms. Ramos voluntarily resigned from her employment. Counsel stated that the Respondent made no effort to ascertain Ms. Ramos’s position. She was still on maternity leave and was entitled to avail of a further eight weeks unpaid leave. Counsel stated that there was no reason for the Complainant to voluntarily resign in circumstances where she was recruited from the Philippines, employed on a work permit held by the employer and at a time when her partner was also without employment. She was particularly vulnerable and there was an onus on the employer at the very least to assist Ms. Ramos to clarify her statutory entitlements.
Citing Labour CourtDetermination No EED 024, A Company v A Worker and Determination No EED 048 Campbell Catering Limited v Adernonke Rasaq,Counsel referred to the need for companies employing non-nationals to recognise the difficulties which may arise from lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture and to make appropriate adjustments. Counsel contended that the failure to recognise the difficulties and to make all appropriate enquires constituted discrimination on the race ground.
Summary of the Respondent’s Case
Counsel for the Respondent submitted that there was no dismissal, that the Complainant voluntarily left her employment when she informed her employer on 10th September, 2003, that she would not be returning to work and at which stage both the pregnancy and maternity leave had concluded. Dismissal was denied. As far as the Respondent was concerned Ms. Ramos' decision to leave her employment was wholly unconnected with her pregnancy, gender or race.
The Complainant’s contract of employment commenced from 26th April, 2001, and was for a fixed period of two years. The employer secured a work permit for her, which commenced in June, 2001, this was renewed in June, 2002, and further renewed in June, 2003, with an expiry date of 26th June, 2004.
Counsel for the Respondent contended that the fact that this permit was renewed in June, 2003, at a time when the employer was fully aware that the Complainant was pregnant undermined any claim that she was dismissed on the basis of her race.
Furthermore, Counsel contended that the fact that the employer gave Ms. Ramos a loan of €1500 on 25th July, 2003, at a time when she was on maternity leave, to facilitate her move to alternative accommodation, when the company moved premises, indicates that it had no intention of dismissing her six weeks later.
Counsel disputed the relevance of theCampbellcase and contended that the circumstances in this case were very different. In theCampbellcase, there was no contract of employment, the employer failed to inform the employee of her employment rights and of the appropriate disciplinary and grievance procedures in place. No such failures were alleged, or existed in this case.
Counsel for the Respondent stated that they received no communication or notification from the Complainant during her period of maternity leave. Although originally she had indicated that she would take her maternity leave from 9th May, 2003, in fact she did not commence the leave until the end of June, thereby not availing of her full statutory maternity leave. Counsel also stated that Ms. Ramos did not notify the Respondent of her intention to return to her employment in accordance with section 28 of the Maternity Protection Act, 1994.
In his evidence to the Court, Mr. Wilson, Managing Director stated that on 10th September, 2003, Ms. Ramos and Mr. Panganiban attended at the place of work to collect Mr. Panganiban’s P45 following his telephone call to the Company requesting the P45. At the meeting Mr. Wilson enquired as to when Ms. Ramos intended to return to work and was informed that she would not be returning as her mother was not coming to Ireland to mind the baby, as planned.
Mr. Wilson denied that neither the Complainant nor her partner made any reference to the possibility of taking additional leave. He told the Court that the meeting, which took place on the stairs, was totally amicable and that this was borne out by the behaviour of Ms. Ramos after the meeting when she showed the baby to various staff members and talked to them in a totally normal manner never mentioning the fact that she had been allegedly dismissed.
Both Mr. Wilson and a second Company witness, Ms. Phipps, Office Administrator/HR Officer, who gave evidence on behalf of the Respondent, disputed the contention that Ms. Ramos’ English was at a basic level, and gave evidence that both had no real difficulty conversing with Ms. Ramos.
Counsel for the Respondent disputed that Ms. Ramos’ knowledge of Irish employment law was limited, stating that she had lived in Ireland since July, 2001, and was sufficiently well informed to be able to fill in the relevant maternity benefit forms. Both Ms. Ramos and her partner understood their annual leave entitlements on termination of her employment and indicated that they were aware of how the social welfare system operated.
Counsel also stated that expert advice was available from an agency called “Expats”, which was funded by the employer. This advice was available to Ms. Ramos if she wished to avail of it. On occasions, if difficulties arose the agency was used to explain matters to Ms. Ramos and Mr. Panganiban and other Filipino workers.
While disputing that a dismissal took place, Counsel submitted that there was no discrimination on gender grounds within the meaning of the 1998 Act as she had failed to observe the statutory obligations imposed by the Maternity Protection Act, 1994, when she failed to furnish the necessary medical certificate certifying her pregnancy. The Complainant had also failed to comply with section 14 of the 1994 Act, to seek her entitlement to additional maternity leave. These failings, coupled with her non compliance with section 28 of the Act (notification of return to work), were matters which can be taken into account in determining an employee’s rights under the Unfair Dismissals Act, 1977 or any other relevant enactment.
Counsel also contended that if there was an error in the dates on the MB10 form, then it was a mistake of both the Complainant and the Respondent and a misunderstanding to which both were party. However, to hold the Respondent responsible for an inadvertent miscalculation of the completion date of the maternity leave would not be within the scope of Employment Equality Act, 1998. The fact that the Complainant states that she intended to seek additional maternity leave, suggests that she did not intend to work for a further 8 weeks from 10th September 2003. In such circumstances, compounded by the failures to comply with section 14 and 28 of the 1994 Act, an employer would be entitled to dismiss an employee who indicated that he/she would not be attending the place of work for the ensuing 8 weeks. If the Complainant had in fact dismissed Ms. Ramos the dismissal would have been justified on a ground wholly unrelated to the former pregnancy or maternity leave of the Complainant.
Another witness, Ms. Kelly, who looked after the Company’s sales, who gave evidence on behalf of the Respondent, stated that she had no problem understanding Ms. Ramos. She understood that Ms. Ramos was due to return to work after her maternity leave. She said that she was surprised when Ms. Ramos decided not to return, as she was concerned about customer orders.
Mr. Wilson gave evidence that if the extra leave were sought, there would have been no problem in granting it; at least two other employees had availed of such leave in the past, without any difficulties. Ms. Phipps in her evidence said that the employer had been flexible with such arrangements and had even allowed her to bring her baby to the workplace on occasions. Secondly, Mr. Wilson told the Court that he was not in any immediate need for her to return to work as he had a replacement worker in place and it would have suited him if she availed of the extra leave.
Ms Phipps said that she could not recollect the meeting on 10th September. It was her recollection that Ms. Ramos and her partner visited the workplace on 9th October to look for a P45 for Ms. Ramos. This visit followed a telephone call from Mr. Panganiban to Ms Phipps, the previous day, in which he requested the P45. She told the Court that Mr. Wilson had indicated to her that the Complainant had resigned due to her mother’s decision not to come to Ireland to mind the baby. This witness recalled being asked by Mr. Panganiban to alter the dates on Ms. Ramos’ P45 to indicate that she had left the Company at an earlier date, so as to ensure that there would no delay with the payment of social welfare entitlements, Ms. Phipps complied with this request.
The Law
The Complainant in this case had the opportunity to bring a claim against her employer under three separate pieces of legislation,
1. The Maternity Protection Act, 1994, which transposes into Irish Law the provisions of the EU Pregnancy Directive. Section 23 (a) of this Act renders void any purported termination of the employee’s employment while on maternity leave. Section 26 of the Act confers a general right to return to work with the same employer, in the same job and under the same conditions of employment as before the maternity leave. Section 28 places a strict obligation on the employee to notify in writing (or cause to be so notified) her employer, of her intention to return to work and of the date on which she expects to return to work.
2. The Unfair Dismissals Acts 1977-1993. Under these Acts, an employee’s dismissal is deemed to be unfair if the dismissal results from her pregnancy, having given birth, while breastfeeding or any matter connected therewith unless there were “substantial grounds justifying” that dismissal.
3. The Employment Equality Act, 1998. The Complainant has chosen this third course. Accordingly, the Court must decide whether there was discrimination against the Complainant within the meaning of the Employment Equality Act, 1998. The Court may, in reaching its conclusions, take cognisance of other provisions designed to protect employees during pregnancy and maternity leave.
The Court accepts that a dismissal during maternity leave and pregnancy may constitute a breach of both the Employment Equality Act, 1998 and The Maternity Protection Act, 1994.
Burden of Proof
It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (S.I. No. 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the Respondent to prove the contrary on the balance of probabilities.
In support of her claim, the Complainant cited the case ofDekker v Stichting Vormingscrentrum voor Jong Volwassen ECJ 177/88[1990 E.C.R. 1-3941]. The Court of Justice in this case held that unfavourable treatment because of pregnancy is by definition direct discrimination on the grounds of sex. The Complainant also citedBrowne v Rentokil [1998 ECRI/4185]; various Labour Court decisions and the provisions of the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85, which make it clear that women who are pregnant must be afforded special protection in employment and cannot be dismissed except in exceptional circumstances unrelated to their pregnancy.
The Court accepts that dismissal during maternity leave may constitute a breach of both the Employment Equality Act, 1998 and The Maternity Protection Act, 1994. In an ECJ caseBrowne v Rentokil [1998 ECRI/4185the European Court of Justice held that the entire period of pregnancy and maternity leave is a special protected period during which both the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 prohibit pregnancy related dismissal on grounds of equality. The Court of Justice in their judgment ofWebb and EMO Cargo Case C-32/93held that employees may not have their employment terminated from the beginning of their pregnancy to the end of maternity leave, “save in exceptional circumstances, not connected with their condition”. The ECJ has held that dismissal during pregnancy is largely incapable of being justified.
Findings and Conclusions of the Court:
The question the Court must answer is whether in all probability the Complainant was dismissed during her maternity leave, or resigned voluntarily, as the Respondent contends.
Firstly, the Court notes that from the evidence given by both sides, the atmosphere on the day in question was without incident; centering around admiring the baby, the news that Ms. Ramos’ mother was not coming to Ireland and the organisation of Mr. Panganiban’s P45. None of the witnesses referred to any form of argument or raised voices,no heat-of-the moment words and no one being under undue pressure etc. The Court accepts that in the circumstances it was reasonable for the employer to conclude that the resignation was real and that his understanding of the situation was accurate.
Secondly, the Court accepts that the employer would have been willing to concede to any request for extra leave as they had a replacement worker in place for Ms. Ramos and while they indicated that they would have had sufficient work for both, they were not overly concerned when she returned to work as she was not been paid during her absence. Furthermore, the actions of the Complainant in not reporting for work and in seeking her P45 on 9th October, 2003, reinforced the view that she had resigned.
Thirdly, the only available evidence of compliance with notification procedures under the 1994 Act is the completed Maternity Benefit form MB10. The dates stated on MB10 for the period of maternity leave were from 9th May, 2003, to 8th September, 2003. These dates were supplied by the Complainant’s partner on her behalf and were accepted and signed by the employer. While this case is being heard under the Employment Equality Act, 1998, and not under the Maternity Protection Act, 1994, the Court is satisfied that the provision of this information constituted notice for the purposes of Section 28 of the 1994 Act.
The 1994 Act states that an employee may avail of maternity leave up to 18 weeks. In this regard the fact that the dates given were slightly short of 18 weeks is of little consequence, particularly in light of the fact that the Complainant chose to avail of only 10 weeks maternity leave in total. The Court notes the Complainant’s contention that the dates were incorrect and should have read from 9th May 2003 to 15th September 2003. However, the employer was not made aware of this error before 10th September 2003 when the alleged dismissal took place. Furthermore, there is no evidence to suggest that the employer was made aware of this error at any time before the commencement of these proceedings. The onus is on the employee to submit her claim for maternity leave and to notify her employer accordingly. In any event, Ms. Ramos in her evidence stated that she was of the view that her maternity leave had expired, when the parties met in the workplace on 10th September, 2003.
Accordingly, the Court must accept that the dates supplied on the MB10 form are dates when the Complainant was covered under “protective leave”. This period expired on 8th September 2003. Consequently, the Court finds it of significant importance that Ms. Ramos’ employment terminated outside of the protective leave and, therefore, is not covered by the protective afforded by the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85.
Under the European Union (Burden of Proof in Gender Discrimination Cases) Regulations, 2001, it is up to the employee to show that she has been dismissed or discriminated against while pregnant or on maternity leave, then the onus switches to the employer to show that such dismissal or discrimination was justified. The Court determines that the Complainant has not established facts from which it can be determined that she was dismissed from her employment during maternity leave arising from her pregnancy in contravention of Equal Treatment Directive 76/207, and contrary to sections 6 and 8 of the Employment Equality Act, 1998.
It is clear to the Court that even if Ms Ramos did have difficulty in understanding the English language, she had access to such knowledge through the services provided by the employer. She clearly had an understanding of entitlements to statutory maternity leave and annual leave, overtime entitlements etc and understood the workings of the Social Welfare system. When the Complainant sought her P45 she looked for an adjustment to be made to the dates of her termination of employment, in order to facilitate payment of unemployment benefit from an earlier date. The Company facilitated this request and stated on the form that her date of leaving was 26th August, 2003. This action was to ensure that she was in receipt of social welfare benefits without any break in payment.
Consequently, the Court does not accept that she was disadvantaged due to language difficulties and cultural differences and that she seemed to have access to a sound understanding of her statutory and contractual employment rights. Therefore, the Court does not find that she was discriminated against because of her race.
Determination
The Court determines that the Complainant was not dismissed in circumstances amounting to discrimination on grounds of her gender or her race contrary to Section 8 of the Employment Equality Act 1998.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th April, 2006______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.