THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2011 - 194
PARTIES
Ms Marta Dabkowska (represented by Richard Grogan and Associates, Solicitors)
and
Gilesview Ltd
(represented by Mr Michael McNamara, B.L., instructed by DAS Group)
File References: EE/2010/017
Date of Issue: 13th October 2011
1. Claim
1.1. The case concerns a claim by Ms Marta Dabkowska that Gilesview Ltd discriminated against her on the grounds of gender, family status and race contrary to Sections 6(2)(a),(c) and (h) of the Employment Equality Acts 1998 to 2011, in terms of her conditions of employment, and discriminatory dismissal.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 12 January 2010. A submission was received from the complainant on 3 June 2010. A submission was received from the respondent on 16 July 2010. On 5 September 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 23 September 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant is a Polish national. She submits that she was not did not receive a proper contract of employment, or proper health and safety documentation and training. She further submits that when she advised the respondent that she was pregnant, she was dismissed without proper procedures.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the onus is on the complainant to show that other staff did receive a contract of employment or a health and safety statement. With regard to the complainant's dismissal, the respondent states that in November 2009, the respondent's business began to struggle, and staff had to be made redundant. The complainant was made redundant under the LIFO [Last-In-First-Out] principle, and her redundancy was not connected to her pregnancy.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and discriminatorily selected for redundancy within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. At the beginning of the hearing, the representative of the complainant withdrew all complaints on the ground of race, and all complaints on the ground of gender except for the complainant's alleged discriminatory dismissal due to pregnancy.
4.4. The complainant started to work for the respondent, a bakery/deli/coffeeshop in Co. Meath, as a sales assistant on 21 September 2009. Her income was €400 per week. Both parties accepted that she advised the respondent owner, Mr M., of her pregnancy on or about 7 October 2009. A copy of the relevant doctor's note was submitted in evidence. The complainant was dismissed by Mr M. in the last week of October, 2009.
4.5. Since this constitutes a prima facie case that the complainant was dismissed within the specially protected period of pregnancy, and while the respondent was aware that she was pregnant, the burden of proof accordingly shifts to the respondent to demonstrate that her dismissal was unconnected to her pregnancy.
4.6. It is the respondent's argument that the complainant was made redundant, due to a decline in sales which occurred when the road on which the respondent business is located effectively became a cul-de-sac due to the routing of the M3 motorway. A genuine redundancy situation, effected under the LIFO principle, would be a valid reason for an employee's dismissal and be unconnected to pregnancy. However, the respondent was unable to produce any paperwork or contemporaneous notes connected to the alleged redundancy, and the reference letter issued to the complainant likewise makes no mention of it.
4.7. Furthermore, the representative of the complainant made the argument that the deterioration of a business location, with a corresponding fall in sales, due to a major construction project such as the building of a motorway is not something that happens overnight. He further argued that against this background, it makes little sense for the respondent to take the complainant on first, and then dismiss her barely a month later. I find that this argument has merit.
4.8. Accordingly, I find that the respondent has failed to rebut the assumption that the complainant was dismissed because she was pregnant, and that the complainant is entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Gilesview Ltd has discriminatorily dismissed Ms Marta Dabrowska while she was pregnant, contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant €15,000. This award is in compensation for the discrimination endured, is not in the nature of pay, and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
13 October 2011