FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BLACKROCK INNS LTD T/A ROCHESTOWN HOTEL (REPRESENTED BY BYRNE WALLACE SOLICITORS) - AND - INGRIDE MATULEVICIENE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 To 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 26th September, 2011. A Labour Court hearing took place on the 3rd February, 2012. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ingride Matuleviciene against the decision of the Equality Tribunal in her claim of discrimination against her former employer Blackrock Inns Limited t/a Rochestown Hotel. The claim was taken under the Employment Equality Acts 1998 to 2011.
In this Determination Ms Matuleviciene is referred to as the Complainant and her former employer is referred to as the Respondent.
At first instance a variety of issues were relied upon as constituting discrimination on a number of discriminatory grounds. For the purpose of this appeal the Complainant confined her complaint to one of discriminatory dismissal on the gender ground by reason of pregnancy.
Position of the parties
The Complainant commenced maternity leave on 13thJuly 2008 and was due to return to her employment on 15thJanuary 2009. She contends that she was dismissed from her employment in early January 2009, before the expiry of her maternity leave, when she enquired about a payment in respect of a Public Holiday to which she was due.
The Respondent denies that the Complainant was dismissed. It contends that she resigned in January 2009 when she asked that her P.45 be made up and returned to her.
The Complainant presented a complaint to the Equality Tribunal through her Solicitors claiming,inter alia,discriminatory dismissal. By letter dated 23rdJanuary 2009 the Complainant’s Solicitors wrote to the Respondent enclosing a copy of the complaint form to the Equality Tribunal and a document described as “notice for particulars”
By letter dated 17thFebruary 2009 Ms Anne-Marie Walsh, Manager of the Respondent Hotel, wrote to the Complainant’s Solicitors expressing surprise at the content of the Solicitor’s letter and setting out the authors belief that the Complainant had resigned and had not been dismissed. The letter concluded in the following terms: -
- “Mrs Matuleviciene’s position remains. She has not been replaced and therefore we would urge her to consider taking up her position with us again. My contact details are [ phone numbers given] and she should call me within the next week to confirm whether or not she would like to come back to work.”
Further correspondence ensued between Ms Walsh and the Complainant’s Solicitor. By letter dated 26thFebruary Ms Walsh repeated the offer to allow the Complainant to resume her employment. In that letter Ms Walsh stated that the offer would be kept open until 6thMarch 2009, after which it would be necessary for the Respondent to fill the position.
The Complainant did not take up this offer.
Evidence
In evidence the Claimant told the Court that in December 2008 she went to the Hotel for the purpose of enquiring if she was entitled to payment for a public holiday. She was accompanied by her son who interpreted for her. She met Ms Anne-Marie Walsh, the manager, who told her that she would need to speak to the Accountant. Some days later she returned to the hotel and spoke to Ms Cheryl Byrne, an Accounts Assistant. Ms Byrne told her that according to the file she (the Complainant) had been dismissed. Ms Byrne said that she would need to talk to Ms Walsh on the matter.
The Complainant told the Court that by January 2009 she had heard nothing further from the Respondent and she formed the view that she should seek her P45 in case she was dismissed. She telephoned the Hotel and spoke with Ms Byrne. She asked that her P45 be left at the reception. A colleague later delivered it to her.
The Complainant accepted that when a complaint was made by her Solicitor the Respondent contended that she had not been dismissed and that her job was available. She said that she did not accept this offer because she did not believe that there was a job available.
Ms Anne-Marie Walsh gave evidence. She said that she was on good terms with the Complainant. She said that the Complainant was not dismissed but had resigned. The witness said that she was not surprised when she learned that the Complainant had resigned as she (the Complainant) and previously indicated to her that she may not return after the birth of her child. The witness recalled that she was working in her office when Ms Cheryl Byrne came into to tell her that the Complainant had requested her P45. She told Ms Byrne to have it made up and to arrange for a colleague to deliver it to the Complainant.
Ms Cheryl Byrne told the Court in evidence that she met the Complainant for the first time in or about December 2008. The Complainant made enquires about a public holiday in respect of which she was claiming payment. The witness said that she took note of the Complainant’s contact details and said that she would deal with her enquiry when she had an opportunity to discuss the matter with Ms Walsh. According to Ms Byrne a cheque in the amount in question was prepared but the witness had no knowledge of what then transpired.
It was Ms Byrne’s evidence that in January 2009 she received a phone call from the Complainant asking that her P45 be made up and issued. The witness arranged for the P45 to be delivered to the Complainant by a colleague. The witness accepted that the P45 recorded the date of leaving as being 29thJune 2008. She said that this arose because that was the last pay week in which the Complainant was paid before going on maternity leave. The computer system had been programmed to stop the Complainant being paid from that date.
The witness denied having told the Complainant that she had been dismissed or having used words which could have been construed to that effect.
Conclusion
The essence of the Complainant’s case is that the Respondent dismissed her while she was on maternity leave and in so doing discriminated against her on gender grounds contrary to s.8 of the Acts. In a line of authorities starting with its decision in Case C-77/88Dekker v Stichting Vormingscrentrum voor Jong Volwassen[1990] E.C.R. I-3941 the CJEU has made it clear that to disadvantage a woman in employment by reason of her pregnancy or maternity is to discriminate against her on grounds of her gender. Section 6 (2A) of the Act gives statutory effect to that principle. It provides: -
- (2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
The Respondent denies that the Complainant was dismissed. It contends that she resigned. Consequently the case turns on whether the Complainant’s employment was terminated by dismissal or resignation. That is a question of fact to be resolved on evidence.
A dismissal (other than by construction) arises where an employer forms an intention to unilaterally terminate the employee’s employment and communicates that intention to the employee in unambiguous terms. The evidence adduced on behalf of the Respondent was to the effect that an intention to terminate the Complainant’s employment had never been formed by a person having authority to make such a decision and that there was no reason as to why the Complainant should be dismissed. It is noteworthy that no motive or reason for wishing to dismiss the Complainant was put to the Respondent’s witnesses in the course of cross-examination.
In her evidence-in-chief the Complainant recalled the import of the conversation with Ms Byrne as being to the effect that an entry in a file indicated that she had been dismissed. The Complainant told the Court that Ms Byrne went on to say that she would have to discuss this matter with Ms Walsh. The Complainant told the Court that she requested her P45“in case I was dismissed”.The Complainant agreed that she did not seek conformation of her status before seeking her P45.
The Court accepts that the Respondent never formed an intention to dismiss the Complainant. Furthermore, taking the Complainant’s evidence at its height, her account of the discussion with Ms Byrne could not amount to an unambiguous communication of dismissal. At worst, Ms Byrne was purporting to interpret something that she had seen in a file, but qualified her statement by saying that she would have to consult further with Ms Walsh. Giving this evidence a construction most favourable to the Complainant, what emerges is a degree of confusion on Ms Byrne’s part regarding the Complainant’s employment status rather than an intention to communicate to her that she had been dismissed. On her own evidence it is also clear that up to the point at which she requested her P45 the Complainant was in doubt as to her employment status. Nevertheless, the evidence shows that she made no effort to clarify her status.
The position taken by the Respondent as soon as it became aware of the Complainant’s contention that she was dismissed is also significant. It unreservedly stated that the Complainant’s position was still available and that she could return to work immediately. It is clear from correspondence opened to the Court that the Complainant instructed her Solicitors to reject this offer because trust between her and the Respondent had been destroyed. In her evidence to the Court the Complainant said that she refused the offer because she believed that, in fact, no job was then available. The position taken by the parties in this matter is, in the Court’s view, more corroborative of the Respondent version of the circumstances giving rise to the termination of the Complainant’s employment than that of the Complainant herself.
Having regard to all the circumstances of the case the Court has come to the conclusion, on the balance of probabilities, that the Complainant was not dismissed. Consequently her appeal cannot succeed.
Determination
The within appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
10th February 2012______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.