EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012-159
Malgorzata Wisniewska
(represented by Citizens Information Centre, Ballina)
versus
The Pilot Bar
(represented by Bourke, Carrigg and Loftus Solicitors)
File reference: EE/2009/442
Date of issue: 22nd November 2012
Keywords: Employment Equality Acts, Gender, Discriminatory Dismissal, Constructive dismissal, pregnancy
Dispute
1.1 This dispute concerns a claim by Malgorzata Wisniewska, against her former employer Neil T. O'Donnell trading as the Pilot Bar, Enniscrone that she was discriminatorily dismissed contrary to the Employment Equality Acts 1998-2011[hereinafter referred to as 'the Acts'] on the ground of gender.
1.2 The complainant referred her complaint under the Acts to the Director of the Equality Tribunal on 30th June 2009. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 9th May 2012 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. A Hearing was held on 23rd May 2012 as required by Section 79(1) of the Acts. A Polish interpreter was requested and assisted at the hearing. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Summary of the complainant's case
2.1 The complainant commenced employment as a kitchen operative with the respondent in March 2008. The respondent is a public bar that also serves food. On 9th January 2009, Mrs Wisniewska's husband Jaroslaw called into the Pilot bar to let them know that his wife would be unable to work that weekend as she was not feeling well because she was pregnant. Mr Wisniewska submits that he did not want to let his wife's employer down so that he suggested his son Pawel would work for her that weekend instead. Pawel had previously done his Transition Year work experience there. The respondent did not agree to this.
2.2 A few days later, the complainant submits that Ms A (wife of lessee and manager of the Pilot bar) rang Pawel (the complainant's English is poor) to say that the kitchen would be closing for a few months and that there would be no work for him or his mother. The complainant and her husband thought their son had misunderstood so they went to the Pilot Bar on 16th January where they maintain they were told that the kitchen would be closing due to a downturn in business.
2.3 When Mr Wisniewska returned for his wife's P45 and final cheque, he submits that the kitchen appeared to be open. For this reason they submit that Ms Wisniewska's employment was terminated because she was pregnant.
Summary of the respondent's case
3.1 Enniscrone is a seaside resort and therefore the respondent's business is largely dependent on tourists. Ms Wisniewska's hours of work ranged from seven hours per week during the low season to sixteen hours per week during the summer season. Ms A submits that these hours suited Ms Wisniewska as she was a beneficiary of Family Income Supplement. Ms A states that Ms Wisniewska was a great worker and they all liked her.
3.2 Ms A accepts that Mr Wisniewska attended their premises on 9th January 2009 and informed her that his wife was pregnant. However, her version of events is quite different. She submits that Mr Wisniewska said that his wife had been instructed by her doctor to cease employment for a three month period as prior to this pregnancy she had a miscarriage. Ms A had been aware of the miscarriage and had given Ms Wisniewska time off to recover at that time.
3.3 Ms A submits that, during this encounter, Mr Wisniewska closed the door behind him and whispered a request to allow his son to replace his mother at work but that Pawel's wages be paid to his wife. This is so that her PRSI contributions would be kept up so that she would be able claim State Maternity Benefit when the baby was born. As Pawel was under-age at the time and because continuing to pay Ms Wisniewska while she was no longer working was against the law, Ms A refused to do this.
3.4 On 16th January when Mr Wisniewska came to collect his wife's week-in-hand wages, Ms A submits that he repeated this request. He said that he would pay his wife's PRSI contributions so long as they kept her on the books. Ms A declined this appeal. Ms A submits that she was not entirely shocked at this request as in April 2008 Mr Wisniewska asked that his wife's wages be paid in his name so that he could avail of PRSI contributions even though he was self-employed as a painter/decorator. This request was also refused.
3.5 Ms A submits that she was a fair employer to Ms Wisniewska. She was given a month's unpaid leave to return home to Poland at the height of the Summer season. Ms Wisniewska requested Sundays (their busiest day) off and was given them to spend time with her family.
3.6 Ms A maintains that they would have welcomed Ms Wisniewska back after her doctor had said it was safe for her to return to work. However, Mr Wisniewska requested and subsequently collected her P45.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is gender. Therefore, the issue for me to decide is whether she was discriminatorily dismissed by the respondent.
Discriminatory Dismissal
4.2 To establish a case of discriminatory dismissal on the grounds of gender, the complainant must do three things:
(i) prove that she is covered by the ground
(ii) that, on the balance of probabilities, the events occurred as she said they occurred
(iii) that the complainant was actually dismissed
4.3 It is common case that Mr Wisniewska informed the respondent that his wife was pregnant on 9th January 2009. Ms Wisniewska did not work for the respondent after that date. I am conscious that the entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions e.g. Webb v EMO Air Cargo (UK) Ltd1 Brown v Rentokil Ltd2 and Dekker v Stichting Vormingscentrum3. These CJEU decisions have been reiterated by the Labour Court and this Tribunal. In Tara Carroll and Paul Cullen the Labour Court stated: No employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing.4
4.4 Therefore, it is beyond doubt that the complainant is covered by the ground of gender and that her complaint of dismissal must be carefully considered.
4.5 Turning to (ii), generally I preferred the evidence of the respondent. Ms A spoke with clarity and conviction and had significant documentary evidence to reinforce her recollection of events e.g. correspondence with the Department of Social Protection local office when that Department queried whether Ms Wisniewska resigned or was dismissed. The reason the issue arose is a person is not entitled to Jobseekers Benefit for nine weeks if s(he) resigns rather than her employment being terminated by her employer. From the correspondence to and from the Department of Social Protection, it is clear that Ms Wisniewska resigned rather than her being dismissed. This correspondence predates her complaint to the Equality Tribunal. Therefore, it supports the respondent's version of events as at that stage they were not aware that they would have an Equality Tribunal case to defend.
4.6 In relation to (iii) I am satisfied that the complainant resigned. Although constructive discriminatory dismissal was not specifically claimed, for the avoidance of doubt I will deal with it. The definition of 'dismissal' in the Act includes constructive dismissal:
"Dismissal" includes the termination of a contract of employment by the 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 would have been entitled to terminate the contract without giving such notice, or it would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly.
I do not find that the conduct of the respondent was so discriminatory on the ground of gender that the complainant can reasonably regard herself as dismissed. The respondent (in adherence with the Maternity Protection Acts) was willing to hold the position open for the complainant until her doctor certified her fit to work. The complainant declined this offer and sought her P45. By the complainant's own admission, the respondent was a good employer. There was no animosity between them. Therefore she cannot claim constructive discriminatory dismissal.
Decision
I have concluded my investigation of Malgorzata Wisniewska's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the complainant has failed to establish the facts from which it may be presumed that she was discriminatorily dismissed on the grounds of gender.
Therefore I find against the complainant.
________________
Orlaith Mannion
Equality Officer
1 [1994] ECR 1-3567
2 [1998] ECR 1-04185
3 [1990] ECR 1-3941
4 DETERMINATION NO. EED0213