The Equality Tribunal
Employment Equality Acts 1998-2008
DECISION DEC-E2012 -056
PARTIES
Lucyna Cierocke
(Represented by Richard Grogan and Associates)
- V -
Viking Lodge Hotel
(Represented by Cullen & Co Solicitors)
File references: EE/2009/599
Date of issue: 14/05/2012
Keywords
Employment Equality Acts 1998-2011 - Discriminatory Treatment - Discriminatory Dismissal- Race - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Ms Cierocke (hereafter "the complainant") that she was subjected to discriminatory treatment, harassment and discriminatory dismissal on the grounds of race, gender and family status by the Viking Lodge Hotel (hereafter "the respondent") contrary to the Employment Equality Acts. The complainant also lodged a claim for equal pay with a named comparator.
2. Background
2.1. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 10 August 2009. In accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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 28 February 2012, on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, an oral hearing was held 28 March 2012 and both parties attended, in addition to a Polish interpreter.
3. Case for the complainant
3.1 The complainant, a Polish national, worked for the respondent for about 2 years between 2007 and 2009. The complainant had originally complained of Harassment, lack of Equal Pay, Discriminatory Treatment and Discriminatory Dismissal in relation to access to employment, training and conditions; however all of these issues were withdrawn at the hearing and the only remaining complaint was that of Discriminatory Dismissal.
3.2 The complainant worked as a cook at the respondent hotel five days per week. She went on maternity leave in 2008 and was due to return on 4 April 2009. On 12 March 2009 she visited the hostel to show her baby to her co-workers. She spoke with the manager who said that she could only work on Saturday and Sunday, as they did not have enough hours for her. The complainant asked for time to think about this. Later she called Ms A, one of her co-workers and said that she did not want to work a 2-day week only. Ms A advised her to call the manager to discuss it. She called the manager and the manager asked for her address. Shortly afterwards she received her P45 and her P60, but did not know why. She never discussed the issue of working a 2-day week with her manager. A short while later, she visited the hotel to rectify a mistake on her P45 and met the co-manager. He asked her why she was not coming back and she told him that she did not want to work for 2 days only.
3.3 The complainant's legal representative stated that the complainant was issued with her P45 during the protected period of maternity leave and the onus therefore lay on the respondent to explain the dismissal. It was further submitted that the respondent had not employed anyone to fill the complainant's position since she left, and this supported her claim that she was let go because there was not enough work.
4. Case for the respondent
4.1 The respondent stated that the complainant had very good English, which had been evident throughout her employment, and they disputed the complainant's need for an interpreter.
4.2 The respondent stated that the complainant was employed as a kitchen porter for 2 years. The hotel is an asylum hostel, which houses people of many nationalities and the small staff cover 5 nationalities and are mainly women. The respondent submitted that the complainant was due back from maternity leave at the start of April 2009, and visited the hostel in March 2009 to meet with her co-workers socially. During this visit, the respondent submitted that the complainant requested to work weekends only and to be paid "cash-in hand". It was submitted that the manager agreed she could work weekends only, but only on a tax- and PRSI compliant basis. A short time later an employee of the respondent discussed the matter with the complainant, who told her that she was not coming back because she had no-one to care for her child. This employee told the manager and the manager asked for the complainant's address to send her P45. The complainant sent her address and was furnished with her P45 and P60.
4.3 A few weeks later the respondent received a complaint under the Employment Equality Acts and they responded by writing to advise the complainant that she was not dismissed and she was welcome to return under the same conditions as before. They received further complaints from the complainant's legal representative in the next few months and wrote again to the complainant on 20 August 2009 advising her that her job was still available to her. Following a letter from the complainant's legal representative dated 29th September 2009, the respondent wrote again to the complainant offering her job back, this time offering her weekend work, if that was her preference, subject to the proviso that it had to be tax compliant.
4.3 Witness for the respondent - a named Co-Manager
The co-manager stated that he was mainly in charge of the day-to-day running of the hostel, as the owner was rarely there. He submitted that he was working in March, when the complainant came in with her baby. He did not know her, because he had started during her maternity leave. After her visit he heard from the manager that the complainant could only work weekends and wanted to be paid cash-in-hand. He and the other manager agreed that this was not possible. He knew she was due back at the start of April, but prior to that, he received social welfare forms which the complainant wanted signed.
The co-manager said that the other manager had been trying to track the complainant down, without any success. The co-manager stated that the change of working hours from 5 days per week to 2 days was the complainant's idea and not his, or the other manager's. He disagreed that she was ever dismissed and stated that the only people who could have sacked her were himself and the other manager.
4.4 Witness for the Respondent - a named Manager
The Manager stated that the complainant made a social visit to the hotel on 12 March to show her new baby. Most of the female staff came to have coffee with her and see the baby. During this visit, the complainant told her that she could not get childminding during the week, but if she could work Saturday and Sunday only, then her husband would look after the baby. She asked if she could be paid on a cash-in-hand basis, because she would otherwise lose certain social welfare entitlements. The manager told her she did not think she would get the social welfare in question because she was married. The manager told her that all employees had to pay PAYE and PRSI and there was no possibility of paying cash.
The manager called the complainant several times after this visit, to establish whether the complainant was coming back or not. It was getting close to the complainant's start date and she needed to know whether she would have to arrange cover if the complainant was not planning to be in work the following week. She had the impression the complainant was avoiding her, so she asked Ms A, a co-worker, to call instead. It was established by text that the complainant was not coming back and she provided her new address for her P45.
4.5 Witness for the respondent - Ms A
Ms A said she was asked by her manager to call the complainant because the manager could not reach her. Ms A submitted that she had previously spoken to the complainant casually and she knew that the complainant did not intend to return to work, but she texted her anyway upon her manager's request, as the rosters needed to be sorted out. The complainant texted back to say that she was not returning because she had no babysitter. This happened at the end of March, very shortly before she was due to return from maternity leave. Ms A passed the information to her manager.
4.6 Witness for the respondent - Ms B
Ms B was present when the complainant visited the hostel to show her new baby. Ms B heard her ask the manager if she could work Saturdays and Sundays off the books. She submitted that the complainant said that her husband could look after the baby at weekends. She submitted that the complainant told them that her friend told her she could go on social welfare. The manager said there was no chance at all of going off the books and she didn't think she would be able to get social welfare. She submitted that, as far as she knew, the complainant did not express a decision that day about what she wanted to do.
5. Conclusions of the equality officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2011 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 It is well established jurisprudence of the European Court of Justice (as has been held in the cases of Webb -v- Emo Air Cargo , Brown -v- Rentokil Ltd and Dekker -v- Stichting Vorm. ) that women who are pregnant are to be afforded special protection in employment and their employment cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. The Labour Court also held in the case of Intrium Justitia -v- Kerrie McGarvey that: "It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that discriminatory treatment on the stated grounds did not take place".
The complainant in this case was due to return to work from maternity leave on or about 4 April 2009. However she received a P45 from her employer which was dated 25 March 2009. Having regard to the foregoing, I am satisfied that this fact is sufficient to raise an inference of discrimination against the complainant on the grounds of her gender. In such circumstances, the burden of proof shifts and it is for the respondent to prove that the discriminatory treatment on the stated ground did not take place.
5.3 In terms of the respondent's rebuttal, I note the following:
- All of the respondent witnesses (who were questioned separately) gave consistent and credible accounts of the complainant's visit to the hotel on 12 March. All said that the complainant had specifically asked to work weekends only and to be taken off the books and paid in cash. They all said that this request was refused categorically by the Manager. However it was agreed by both sides that, during the visit, no decision was taken by the complainant regarding her return to work.
- Ms A gave evidence that the complainant told her she was not coming back to work and she provided her address in order that her P45 would be sent to her.
- Both the manager and the co-manager were credible in asserting that they had not dismissed the complainant and that they believed they were appropriately responding to the complainant's own preference not to return to work.
- The respondent offered the complainant her job back, in writing, on three separate occasions, the first of which was shortly after the alleged dismissal.
In summary therefore, the respondent's defence is that the complainant resigned from her employment and was not dismissed.
5.4 The Labour Court has considered this matter in Parcourt Ltd t/a Café Viena v A Worker EED0211 and also in Dollymount Creche & Montessori v Finnerty EED034. Both of these cases concerned disputes as to whether there was a resignation or a dismissal during maternity leave, and in both cases, the Court found that there was a dismissal, noting that it is well established that the level of protection afforded to employees during the period of their pregnancy and maternity leave is very high. Employees are protected by the Equal Treatment Directive 76/207, the Pregnancy Directive 92/85 and sections 6 and 8 of the Employment Equality Acts. It follows therefore, that where doubt exists regarding the termination of employment during maternity leave, this doubt must be resolved in favour of the employee. In the present case, while I accept that the respondent employees may have believed they were responding to the complainant's wishes, I find that they had insufficient evidence of the complainant's intention to resign. The onus was on the respondent to resolve all possible doubts on the matter. The respondent therefore should not have issued the complainant with a P45 one week before the end of her protected period, in the absence of a clear, unambiguous resignation by the complainant.
6. Decision
6.1. I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the complainant was discriminatorily dismissed on the grounds of gender contrary to 8 (6)(c) of the Act.
6.2 In calculating the redress, I have taken into account all of the circumstances of the case. In this regard I draw particular attention to para 5.3 above. I must balance all of these factors with the requirement to ensure that sanctions are effective, proportionate and dissuasive. Pursuant to 82 (1) (c) I order that the respondent pay the complainant €4,000 for the effects of discrimination. This is equivalent to approximately 3 months salary. This award is in compensation for the infringement of the complainant's statutory rights and, therefore, not subject to income tax as per Section 7 of the Finance Act 2004.
__________________
Elaine Cassidy,
Equality Officer
14 May 2012