EQUALITY OFFICER'S DECISION NO: DEC-E/2010/057
PARTIES
PACZESNA
(REPRESENTED BY O'GORMAN, CUNNINGHAM & COMPANY - SOLICITORS )
AND
CLANREE HOTEL LTD.
File No: EE/2008/069
Date of issue 29 April, 2010
Headnotes: Employment Equality Acts, 1998-2007 - sections 6,8 and 77 - gender -pregnancy - discriminatory treatment - discriminatory dismissal - conditions of employment - burden of proof.
1. DISPUTE
This dispute involves a claim by Ms Mariola Paczesna ("the complainant") that she was (i) discriminated against by the Clanree Hotel Ltd ("the respondent") on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts following her notifying the respondent of her pregnancy in October, 2007. The respondent rejects the complainant's allegation in their entirety.
2.BACKGROUND
2.1 The complainant, who is Polish , commenced employment as a waitress with the respondent in April, 2007. She states that in October, 2007 she informed a Supervisor (Ms. B) that she was pregnant. Shortly after this the complainant suffered a pregnancy related illness which necessitated her taking time off work during the last week of November. She resumed work on 7 December, 2007 for one week but became ill again on 15 December and was unable to report for her shift. She states that she asked a colleague (Ms. P) to let her Supervisor (Ms. F) know that she was unfit for work that day. She was subsequently medically certified unfit for work (until 31 December, 2007) due to a pregnancy related illness and states that she furnished medical certificates to the respondent confirming same. She states that she received her P45 from the respondent on 31 December, 2007 although this was revoked at a meeting with the Hotel Assistant Manager a few days later. The complainant states that she remained on certified sick leave until February, 2008 and submitted medical certificates covering her absence. She adds that she sought clarification of her position in mid-January, 2008 and was again advised that her employment was terminated. She states that despite a number of attempts on her part to do so her situation was not clarified and she never resumed duty. She submits that this constitutes discriminatory dismissal of her on grounds of gender contrary to the Employment Equality Acts, 1998-2007. The respondent rejects the complainant's assertions in their entirety. It accepts that the complainant's P45 issued in late December, 2007 but states this was in error and was revoked immediately. It adds that the complainant was assured her employment was safe on a number of occasions and that it made every effort rectify the situation which arose. The respondent adds that it heard nothing further from the complainant (except the complaint to this Tribunal) after its letter to her of 20 February, 2008.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 6 February, 2008. In accordance with her powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on 28 August, 2009 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 22 February, 2010. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until late March, 2010.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant commenced employment with the respondent as a waitress on 15 April, 2007. She states that she informed a Supervisor (Ms. B) that she was pregnant sometime in October, 2007. She adds that she suffered a pregnancy related illness which required her to remain off work from 29 November, 2007 - 6 December, 2007. A medical certificate covering this absence was left in to the respondent premises during that week, although the complainant is unable to recall by whom. The complainant states that she resumed work on 7 December, 2007 and worked until 14 December. She further states that she suffered a recurrence of the illness on 15 December, 2007 and was unable to attend work that day. The complainant adds that a colleague (Ms. P) informed her Supervisor (Ms. F) later that day that she (the complainant) was ill and unable to attend work and that she was not sure when she would be back. The complainant states that she attended her doctor on 19 December, 2007 and was certified unfit for work for a week. She adds that this medical certificate was given by another colleague to the Duty Manager (Mr. M) the next day. The complainant states that she was further certified unfit for work until 31 December, 2007 and this medical certificate was handed to Ms. F by Ms. P sometime between Christmas and the New Year - perhaps 28 December, 2007. The complainant further states that her condition was not improving and she was certified unfit for work for the entire month of January, 2008 - although she is unable to say how this medical certificate was transmitted to the respondent.
3.2 The complainant states that she received her P45 from the respondent in the post on 31 December, 2007. She was extremely upset about this and rang the respondent immediately. She spoke with Ms. A, the respondent's Payroll Manager, who advised her that she (Ms. A) had prepared the P45 on the written instruction of the Hotel Manager who had certified the complainant had resigned from employment on 16 December, 2007. The complainant states that a meeting was arranged for 3 January, 2008. This meeting was attended by the complainant, the hotel's Assistant Manager (Mr. C) and Ms. F, the complainant's Supervisor. The complainant states that at this meeting she was informed the P45 had issued in error and a P60 should have issued instead. She adds that she gave the P45 back to Mr. C and was told that a P60 would issue in due course. She states she understood this to mean that she was still employed by the respondent. She adds that at this meeting the manner in which she had previously notified the respondent was raised and she advised them that she was certified unfit for duty until 1 February, 2008 at earliest due to a pregnancy related illness.
3.3 The complainant states that a couple of weeks later she became aware that her colleagues had received their P60's so she contacted the respondent to see where her document was. She states that she spoke with a Duty Manager (Ms. O) who told her that she was no longer employed by the respondent. The complainant states that when she sought an explanation of this comment she was told the Assistant Manager would contact her later. She adds that when he did not do so her husband made efforts to contact him instead. At the Hearing the complainant's husband stated that he managed to speak with Mr. C on 21 January, 2008 and was informed that as the respondent was unable to locate the complainant's medical certificates it had not revoked her P45. The complainant states that this prompted her to write to the respondent on 26 January, 2008 seeking clarification of her situation and she followed up this letter with a number of telephone calls. She adds that on 2 February, 2008 she was informed by Ms. P that Mr. N (the Hotel's General Manager) wished to meet with her that afternoon. She attended this meeting with her husband and asserts that Mr. N appeared angry about her letter of 26 January. She asserts that he told her she had left her job and when she rejected this he told her that he could not hold her job open for her that long and that she could apply for social welfare benefits. The complainant states that at this meeting she gave Mr. N a further medical certificate certifying her unfit for work until 15 February, 2008. The complainant rejects the respondent's version of what happened at this meeting or that it was amicable in tone.
3.4 The complainant states that her husband telephoned the respondent on 7 February, 2008 enquiring as to her P45 but got little satisfaction. She adds that by this time she had lodged her complaint with this Tribunal and her husband received a phone call from Mr. N on 8 February, 2008 advising that her P60 was now available. She further states that the respondent made a number of attempts to meet with her to discuss the matter and a meeting was scheduled for 15 February, 2008. She adds that she was so distressed she was unable to attend this meeting and her husband attended alone. The complainant states that by this stage she was so distressed that she felt she was unable to return to work for the respondent and she did not do so. She submits that the alleged treatment of her constitutes (i) less favourable treatment of her and (ii) discriminatory dismissal, or in the alternative constructive discriminatory dismissal, of her on grounds of gender, contrary to the Acts.
4.SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It accepts that it was aware of the complainant's pregnancy from October, 2007 and that the complainant was unfit for work due to a pregnancy related illness from29 November, 2007 - 6 December, 2007 and submitted a medical certificate covering that absence. It states that the complainant was rostered to work on the evening of 15 December, 2007 but did not report for duty. It adds that Ms. P approached Ms. F sometime that afternoon and informed her that the complainant was unwell due to her pregnancy. However, it contends that Ms. P added that the complainant would not be returning to work at all. The respondent states that on that basis Ms. F prepared a "Leaver's Form" which was countersigned by Mr. N and passed on to Payroll Section. It adds that consequently the Payroll Section prepared the complainant's P45 which issued to her sometime after Christmas. The respondent accepts that the complainant submitted medical certificates covering her period of absence 17-31 December, 2007 but states that at the time they had been given to various Personnel and were not therefore on file in the Payroll Office. Consequently, the P45 issued in error.
4.2 The respondent accepts that the complainant spoke with Ms. A on 31 December, 2007 advising that she had not resigned. It adds that Ms. A informed the complainant the P45 had been prepared on the Manager's instruction and that she would investigate the matter and revert to her. The respondent states that Ms. A reported the matter to Mr. X. - the respondent's Financial Controller - and having reviewed the paperwork he was satisfied the P45 was issued in error and instructed that it be cancelled. The respondent adds that the Hotel Management was informed of this and a meeting with the complainant was arranged for 3 January, 2008. The respondent states that the complainant returned her P45 to Mr. C at this meeting and he informed the complainant that a P60 would issue in due course and that she remained an employee of the company. The respondent states that the Payroll Section handles all salary related matters for the 380 staff who are employed at the five companies which comprise the Group. It adds that the end of year (2007) Revenue returns had been prepared and posted on the Revenue on Line System (ROS) by 2 January, 2008 and the incorrect records in respect of the complainant had been included in those returns as it believed she had terminated her employment. Consequently, retrieval and correction of this incorrect information proved more difficult than had been anticipated.
4.3 The respondent does not dispute that the complainant made efforts to contact Mr. N in mid-January, 2008 and states that she was unable to do so because he was away on business. It cannot comment on the alleged telephone conversation between the complainant and Ms. O or the complainant's husband and Mr. C as neither worked there at the time the submission was prepared. It states that on his return to work on 29 January, 2008 Mr. N was advised of the phone calls from the complainant and was also given her letter of 26 January. The respondent (Mr. N) states that he contacted the complainant himself by telephone on 30 January, 2008 - he rejects the complainant's assertion that he passed a message through Ms. P - and the meeting of 2 February (which was a Saturday) was arranged because the complainant wanted her husband present and he worked during the week. The respondent (Mr. N) rejects the complainant's account of this meeting. He adds that he reassured the complainant the P45 had been issued in error and that her P60 would issue. He states that he undertook to examine her maternity benefit entitlements and revert to her within a few days on the matter and invited her to contact him direct should she have any problems. He contends that the meeting was an amicable one and he understood that the complainant was happy with the outcome.
4.4 The respondent (Mr. N) states that he made efforts to contact Mr. X about the complainant's P60 but he was on leave until 5 February. When Mr. X returned he informed him that the P60 was imminent and he (Mr. N) contacted the complainant on 8 February to advise her of this and the information he had obtained on her maternity benefits. He adds that the complainant was unavailable and he spoke with her husband. He states that he was taken aback when the complainant's husband informed him that due to the respondent's delay in handling the matter the complainant had referred the matter to this Tribunal. The respondent states that the complainant's P60 was posted to her on 11 February and a number of attempts were made to schedule a meeting with the complainant to discuss matters - a meeting was eventually arranged for 15 February. The respondent adds that the complainant's husband attended this meeting alone. It further states that at this meeting Mr. X and Mr. N explained the reasons for what they considered the confusion surrounding the issuing of her P45 in late December, 2007 and why the delay in issuing her P60 arose. It adds that Mr. X confirmed again that the complainant was still an employee and should contact Mr. N if and when she was fit to resume duty. The respondent states that the complainant's husband refused to confirm whether or not she had received her P60 in the post, accused the respondent of racism and being "slave drivers", reiterated that the matter was now with the legal authorities and left the meeting. The respondent states that it wrote to the complainant on 20 February, 2008 asking her to confirm receipt of her P60, inviting her to contact it should she not have received it and restating that she remained an employee and to contact it if and when she was fit for work. It states that no response was ever received to this letter.
4.5 The respondent accepts that the situation arose because it issued the complainant's P45 in error in December, 2007, although it contends the complainant contributed to this confusion by providing medical certificates via a number of routes and not complying with written procedures on this matter. It submits that when this error came to light it acted as swiftly as it could, given the situation which existed as regards the end of year Revenue returns. It further submits that it made a number of attempts to assure the complainant she continued to be an employee and rejects the assertion that she was dismissed. It also rejects the assertion that the complainant was constructively dismissed and argues that she resigned her employment, particularly as she made no contact with the respondent after 15 February, 2008 despite its letter of 20 February, 2008.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 77 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 - 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment on the ground specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
5.3 I propose to deal with the complainant's alleged discriminatory dismissal in the first instance. The complainant assertion on this aspect of her complaint comprises two alternative elements. The first of these is that the respondent, by virtue of issuing a P45 to the complainant in late December, 2007, dismissed her whilst she was pregnant. The second is if this Tribunal is not satisfied that the complainant was dismissed by the respondent in December, 2007, that the actions of the respondent between then and February, 2008 were such as to entitle the complainant to terminate her employment and consider herself constructively dismissed. I shall deal with the former line of argument first - the respondent dismissed the complainant. It is accepted by the respondent that it issued a P45 to the complainant in late December, 2007. It states that this arose because Ms. F understood the message given to her on the afternoon of 15 December, 2007 by Ms. P to be that the complainant was unwell due to pregnancy and was not returning to work at all. Consequently, Ms. F prepared the relevant cessation documentation for the Payroll Section. In the course of the Hearing both Ms. P and Ms. F gave evidence as to their version of events that day. It was clear to me that Ms. P's understanding of English was not particularly good and I am satisfied, on balance, that it was likely to be have been poorer in late 2007 when the events occurred. In my view this contributed to the confusion which ensued - culminating in the actions of Ms. F. However, I find that those actions were premature and she (Ms. F) was obliged to contact the complainant to clarify the position [1] before preparing the "Leaver's Form", particularly as she was aware the complainant was pregnant. She did not do so and acted on second hand information - information that clearly could not be fully relied upon due to the poor level of English which Ms. P possessed. The actions of Ms. F resulted in the complainant's P45 issuing to her. However, the complainant contacted the respondent on receipt of the P45 on 31 December, 2007 and it undertook to investigate the matter and further events unfolded.
5.4 It is common case that the parties met on 3 January, 2008 and I am satisfied that by this time the respondent (through Mr. X) had realised the P45 had issued in error and instructed that it should be revoked. It is also common case that the complainant returned her P45 to Mr. C at this meeting and I note her evidence that her understanding following the meeting was that she was still an employee of the respondent and a P60 would issue to her in due course. It is clear that the complainant was unaware of the respondent's actions until 31 December, 2007 and I am satisfied she suffered no loss as a result of them as she was on unpaid sick leave at the time. The respondent took prompt action to rectify the situation - meeting with the complainant at the earliest opportune time, revoking the P45, assuring her that she remained an employee and correcting the records with the Revenue Commissioners. I have carefully evaluated the evidence presented by the parties on this issue and I find, on balance, that the complainant was not dismissed by the respondent as asserted. However, I find that the actions of the respondent - in particular those of Ms. F - constitutes less favourable treatment of the complainant on grounds of gender. The respondent accepts that they were premised on the complainant's pregnancy and therefore it cannot rebut the inference of discrimination raised. It follows therefore that the complainant is entitled to succeed in this element of her complaint.
5.5 I must now examine whether or not the events in January/February, 2008 amount to discriminatory dismissal of the complainant. The complainant asserts that she spoke with Ms. O - a Duty Manager - on 19 January, 2008 and was again informed she was not an employee. The respondent could not deny this assertion and I note Mr. X accepted that his instruction the complainant's P45 was revoked might not have filtered down to staff at Ms. O's level within the organisation. The complainant further asserts that a couple of days later her husband spoke with Mr. C and was informed by him that he (Mr. C) was unable to locate the complainant's medical certificates and he could not hold her job open for her. I note the complainant stated at the Hearing that this telephone call prompted her to write to the respondent's General Manager on 26 January, 2008. If either or both of these telephone conversations took place I am of the view that it was reasonable for the complainant to believe that she had been dismissed and the understanding given to her at the meeting of 3 January, 2008 had changed. In those circumstances I would have expected that the complainant would have referred to these telephone conversations in her letter of 26 January, 2008 to Mr. N. However, there is no reference to either conversation in that letter. I consider this to be significant and find on balance, that these conversations did not occur along the lines alleged by the complainant.
5.6 It is common case that the complainant and her husband met with Mr. N on 2 February, 2008. The manner in which this meeting was arranged and notified to the complainant is significant in the context of the complainant's credibility. She asserts that Ms. P told her Mr. N wished to meet with her that day. Mr. N stated that he contacted the complainant himself and the arrangements were made for a Saturday to facilitate the complainant's husband. I note that this was Mr. N's first real involvement in the matter and he was not aware of Ms. P's previous connection with the issue. Having evaluated the evidence submitted by both parties on this point, I find Mr. N's version of events more compelling. There is conflict as regards the content of this meeting. The complainant asserts Mr. N told her he could not hold her job open for her - in effect she was dismissed. Mr. N states he reassured the complainant she remained an employee, that her P60 would issue shortly and undertook to investigate her maternity leave entitlements and revert to her. At the hearing both the complainant and her husband accepted Mr. N's evidence on the maternity leave entitlements. In addition, both Mr. N and Mr. X gave evidence at the Hearing (independently of each other) that the matter of the complainant's P60 was discussed by them after the latter's return from annual leave on 5 February, 2008. In my view the comment which the complainant and her husband accept Mr. N made at the meeting and his interaction with Mr. X about the P60 are not consistent with Mr. N dismissing the complainant as alleged. Accordingly, I prefer Mr. N's version of events in respect of that meeting.
5.7 The complainant had already lodged her complaint form with this Tribunal when the next contact between Mr. N and the complainant's husband occurred. On the basis of the evidence given at the Hearing I am satisfied that this discussion was short and was not particularly friendly. The parties agreed to meet on 15 February, 2008 - a meeting which the complainant's husband attended alone. Again, on the basis of the evidence adduced I am satisfied that this meeting was also a tense and acrimonious affair which culminated in the complainant's husband leaving abruptly. However, at the Hearing the complainant's husband confirmed that Mr. X stated, in the course of that meeting, that the complainant continued to be an employee and she should contact the respondent if and when she was fit to resume work. I note that this comment is reiterated in the respondent's letter of 20 February, 2008 - which the complainant accepts she never responded to.
5.8 In light of my comments in the preceding paragraphs I am satisfied that the actions of the respondent between 3 January, 2008 - 20 February, 2008 are consistent with its assertion that the complainant remained at all times an employee. I accept the evidence of both Mr. X and Ms. A - which was given at the Hearing independently of each other - that the end of year Revenue returns created unanticipated difficulties with issuing the complainant's P60 and that it did so at the earliest date possible - 11 February, 2008. It follows therefore that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of gender contrary to the Acts and this aspect of her complaint cannot succeed.
5.9 I shall now examine the complainant's alternative argument as regards dismissal - her assertion that she was constructively dismissed on grounds of gender. She states that due to the treatment she suffered in the months after she informed the respondent of her pregnancy she found it impossible to return to work. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so ...."
In An Employer v A Worker (Mr. O No.2) [2] the Labour Court comprehensively addressed the issues of constructive dismissal under employment equality legislation. It noted that the above definition was practically the same as the definition of "dismissal" contained in the unfair dismissals legislation and held that the tests for constructive dismissal developed under that legislation - the "contract" test and the "reasonableness" test - were applicable tests under the Employment Equality Acts. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case".
5.1 In the instant case I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that she could not fairly be expected to endure it any longer and she was therefore entitled to resign from its employment. In light of my comments in the preceding paragraphs I find that the complainant has adduced no evidence from which it could be inferred that the actions of the respondent were unreasonable. Accordingly, I find that the complainant has failed to establish a prima facie case of constructive discriminatory dismissal in terms of the Employment Equality Acts, 1998 - 2007.
5.11 The final aspect of the complainant's case concerns allegations of less favorable treatment on grounds of gender contrary to the Acts. As stated at paragraph 5.2 above the initial burden of proof rests with the complainant to establish a prima facie case of less favourable treatment on the ground cited so as to shift the onus to the respondent to prove that the principle of equal treatment has not been infringed. Whilst she did not specifically say so, it is clear the complainant contends that the alleged treatment of her by the respondent from 17 December, 2007 until 20 February, 2008 constitute discriminatory treatment of her on grounds of gender. I have already found that the treatment of the complainant by the respondent during the period 17 December, 2007 - 31 December, 2007 to constitute discriminatory treatment of her, on grounds of gender, contrary to the Acts. However, having carefully examined the evidence submitted by the complainant in the course of my investigation I am not satisfied that it is sufficient to establish a prima facie case of discriminatory treatment in respect of the period 3 January, 2008 - 20 February, 2008 and accordingly, this aspect of her complaint must fail.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the complainant had failed to establish a prima facie case of discriminatory treatment on grounds gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of the period 3 January, 2008 - 20 February, 2008 and this element of her complaint cannot succeed,
(ii) that the complainant had failed to establish a prima facie case of discriminatory dismissal on grounds gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 77 of those Acts and this element of her complaint cannot succeed,
(iii) that the respondent discriminated against the complainant, on grounds gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in respect of her conditions of employment during the period 17 December, 2007 and 31 December, 2007.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay Ms Paczesna the sum of €2,000 by way of compensation for the distress suffered by her as a result of this discrimination. This award does not include any element of remuneration and is not therefore subject to the PAYE/PRSI code.
_______________________________________
Vivian Jackson
Equality Officer
29 April, 2010