DEC-E2013-138

Decision No: DEC-E/2013/138

Parties

Sojda

-v-

Duffy Meats Ltd t/a Kerry Foods

(Represented by IBEC)

File No: EE/2011/530

Date of issue: 11 November, 2013

Headnotes: Employment Equality Acts 1998- 2008 - sections 6 and 8 dismissal – gender – pregnancy – fixed-term contract

1. DISPUTE

This dispute involves a claim by Ms. Dominika Sojda, (“the complainant”) that that she was dismissed by Duffy Meats Ltd. t/a Kerry Foods (“the respondent”) in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, shortly after she advised the respondent she was pregnant in March, 2011.

2. BACKGROUND

2.1 The complainant states she was employed by the respondent as a General Operative on a number of separate occasions between August, 2006 and March, 2011 on a series of fixed-term contracts. She further states that in late February, 2011 she informed the respondent she was pregnant and that four weeks later her employment was terminated and submits this amounts to discriminatory dismissal of her on grounds of gender (pregnancy) contrary to the Employment Equality Acts, 1998-2008. The respondent rejects the complainant’s assertions and states that the complainant’s employment terminated on the expiry of her fixed-term contract and had nothing whatsoever to do with her pregnancy.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 4 July, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaints commenced on 12 September, 2013, the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 24 October, 2013.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant states that she was employed by the respondent as a General Operative on a series of fixed-term contracts between August, 2006 and March, 2011 as follows –

3.2 The complainant states that she received and signed separate contracts in respect of each period of employment detailed in the above Table. She further states that at the end of each period of employment (1, 2 & 3) she was advised by her Supervisor (at the time) about a week before the cessation of each period, that her employment was to cease at the end of the period of the contract in existence at that time. She adds that she obtained re-employment in respect of periods 2, 3, and 4 following her writing to the respondent seeking same – friends who worked in the plant had informed her that the respondent was looking for staff. She adds that at no stage during each of the periods she was off work did the respondent contact her direct advising her there were vacancies coming up. She further states that she received a P45 from the respondent at the end of each of the four periods of employment detailed in the Table above.

3.3 The complainant states that she found out she was pregnant on 25 February, 2011. She adds that when she reported for duty at 8am on the following Monday - 28 February, 2011 - her Team Leader instructed her to perform tasks in another area which involved heavy lifting and she declined to do so. She further states that she informed her Team Leader of her pregnancy at that time and she (Team Leader) advised her to inform the Supervisor of same. The complainant states that she immediately informed the Supervisor of her pregnancy – she is unable to remember his name. She states that the Supervisor said nothing to her as regards anything further she needed to do in terms of confirming her pregnancy to the respondent and she returned to work.

3.4 In the course of the Hearing the complainant stated that she went to the Supervisor’s Office on or around 16 March, 2011 and spoke with her new Supervisor (Mr. S). She added that informed him she was pregnant. She stated that he too did not require her to complete any internal documentation or request her to furnish medical evidence of her pregnancy. She was unable to say why she decided to inform him of her condition when she had already informed the previous Supervisor or why she had not included this information to the Tribunal previously, in particular her submission received on 14 November, 2011. She adds that Mr. S called to his Office on or around 18 March, 2011 and informed her that her contract was due to expire of 25 March, 2011 and the respondent was probably not going to extend it. The complainant rejects the respondent’s assertion that she only informed it of her pregnancy on 23 March, 2011.

3.5 The complainant states that Mr. S called her to his Office on 24 March, 2011 where he told her that “tomorrow is your last day”. She adds that he told her that if and when any future vacancies arose he would contact her. The complainant states that her employment terminated the next day. She rejects the respondent’s assertion that selection for termination of employees on fixed-term contracts is based on “last in – first out” and contends that two male employees with less service than her were retained in employment at the tine. She is unable to provide any further details of these employees. She adds that she is unable to take issue with the details of the seven other fixed-term employees who had their employment terminated on the same day as her. The complainant submits that the respondent’s decision to terminate her employment amounts to discrimination of her on grounds of gender contrary to the Acts.

3.6 The complainant states she heard from friends that the respondent conducted a recruitment campaign in May, 2010 when it hired approximately fifteen staff. The complainant states that she was not contacted by the respondent as promised by Mr. S and in essence that this failure amounts to less favourable treatment of her on grounds of gender. In the course of the Hearing the complainant confirmed that she did not contact the respondent herself at that time because her doctor had told her she was not medically fit to work due to her pregnancy. She added that she had not contacted the respondent about work subsequently because she returned to Poland four months after the birth of her baby.

4. SUMMARY OF RESPONDENT’S CASE

4.1 The respondent rejects the complainant’s assertions in their entirety. It accepts the periods of employment indicated by the complainant and confirms that each period was the subject of an individual fixed-term contract. It also confirms that at the end of each of the four periods of employment the complainant received a P45. It states that the complainant’s employment was terminated on the expiry of a fixed-term contract which she entered into on 7 March, 2011, in circumstances where no further work was available and that it had nothing to do with her pregnancy. The respondent adds that the overall number of staff to be let go (at any time) is determined by Senior Management (in consultation with Operational Management) and once this overall number is decided Human Resources identifies staff on the application of the “last in – first out” (LIFO) model of selection. It adds that seven other employees, in addition to the complainant, were selected for termination of their employment on 25 March, 2011 applying LIFO. The respondent states that this process for selection is in accordance with an internal agreement on the matter between it and the relevant trade union and is used all the time save where a particular “skill set” is required e.g Line Boners. It adds that since the complainant had her most recent contract extended (3 September, 2010) eighty-three people on fixed-term contracts had their employment terminated on the basis of LIFO and it furnished the Tribunal with details of same.

4.2 The respondent states this internal agreement provides that each time a person is re-employed it is on the basis of him/her being a “new employee” and calculable service accrues afresh from that date. In this regard it states that at the height of the season up to 25% of its employees would be on fixed-term contracts. The respondent states that as a result of applying this process the complainant and the seven other employees who had their employment terminated on the same day, were those with the least amount of service at that time. It accepts that there were five employees with lesser service than the complainant but states these were skilled as Line Boners. It furnished the Tribunal with documentation supporting its position in the matter.

4.3 The respondent states that once employees whose contracts are to be terminated are selected the relevant Supervisors meet with them about one week before the contract is due to expire to advise those employees of the situation. The respondent states that this is what happened in the case of the complainant, although in the course of the Hearing Mr. S, who was the complainant’s Supervisor at the time, was unable to specifically recall her. The respondent states that it was normal practice for staff to inform their Supervisor if they were pregnant. The Supervisor would inform Human Resources who would, in turn, have the necessary documentation completed by the employee. The respondent states that the first occasion it became aware of the complainant’s pregnancy was 23 March, 2011. In this regard it furnished an e-mail dated 23 March, 2011 from Mr. S to Human Resources which reads “Dominika has come to me today to say that she is 2 months pregnant”. In the course of the hearing Mr. S stated that he was a Supervisor six years at that stage and that it was his practice to advice Human Resources immediately an employee advised of pregnancy given the potential health and safety issues involved in the plant for such an employee. The respondent (Mr. S) states that it is possible he met with the complainant on 24 March, 2011 and that he told her he would contact her but he simply cannot recall.

4.4 The respondent accepts that it recruited staff in May, 2011 and states that the complainant never applied for those posts. It adds that staff are recruited generally through word of mouth – Supervisors inform serving staff that vacancies are due to be filled and potential employees apply. It adds that it is not its practice to make personal contact with individual employees when vacancies arise, although some Supervisors may do so. It submits that any failure on the part of Mr. S to contact the complainant in this regard was an oversight and could not amount to less favourable treatment of her contrary to the Acts.

4.5 In summary, the respondent submits that it applied the standard procedures to the complainant as regards the termination of her employment on the expiry of her fixed-term contract as there was no further work available and that this decision was not connected in any way whatsoever with her pregnancy. It relies on (i) the Decision of this Tribunal in Bataitiene v Anglo Irish Beef Processors[1] in terms of its argument on the expiry of a fixed-term contract and (ii) the Decision of this Tribunal in Butiene v Ireland’s Eye Seafoods Ltd[2] and the Determination of the Labour Court in Mason v Winston’s Jewellers[3] in terms of the argument that there were factors unconnected with her pregnancy which render the termination of her employment lawful.

5. CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The issue for decision by me is whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 contrary to section 8 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties and the witnesses at the Hearing.

5.2 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. This provision requires the complainant to establish, in the first instance, facts from which discrimination can be inferred. It is only where those facts are established and they are regarded by an Equality Officer as being of sufficient significance to discharge the initial probative burden required of the complainant that the onus shifts to the respondent to show that the principle of equal treatment was not infringed. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.

5.3 It is well established law[4] that the entire period of pregnancy and maternity leave is a “protected period” during which a pregnant employee cannot be dismissed save in exceptional circumstances unconnected with her pregnancy or maternity. It is common case that the complainant was (at the relevant time) employed on a fixed-term contact which was dated 7 March, 2011 and due to expire on 25 March, 2011. This contract was the fifth in a series of such contracts which had commenced on 9 June, 2010. In Melgar v Ayuntamiento de los Barrios[5] the ECJ (as it then was) ruled that the prohibition against dismissal of a female employee during the “protected period”, in terms of Article 10 of the Pregnant Worker’s Directive[6] applied to employees engaged on fixed-term contracts. However, the Court went on to hold “It is clear that the non-renewal of a fixed-term contract, when it comes to the end of its stipulated term, cannot be regarded as a dismissal … contrary to Article 10 of Directive 92/85.”. I am satisfied that this is what happened in the instant case – that the complainant was dismissed on the expiry of her fixed-term contract. I am further satisfied, having carefully examined the documentation furnished by the respondent, that (i) the selection of the complainant for termination of her fixed-term contract was done on the basis of service in terms of LIFO, in line with established practice agreed with the relevant trade union and was not influenced in any way whatsoever, by her pregnancy and (ii) other employees had the same process applied to them and were also dismissed. Whilst the complainant may have considered the manner in which the respondent handled the termination of her employment to have be somewhat offensive to her, I am satisfied it did not amount to less favourable treatment of her on grounds of gender contrary to the Acts. In light of the foregoing, I find that the complainant has failed to establish a prima facie case that she was dismissed in circumstances amounting to discrimination on grounds of gender contrary to the Employment Equality Acts, 1998-2008 and this element of her complaint fails.

5.4 The complainant contends Mr. S gave her an assurance, when terminating her employment on 24 March, 2011, that he would contact her if future employment arose. Mr. S cannot recall if he made such a comment but, in any event, even if he did so I am satisfied that any failure on his part to follow it up was an oversight and does not constitutes less favourable treatment of the complainant contrary to the Acts. In the course of the Hearing the complainant stated she became aware (through friends) that the respondent was recruiting in May, 2011. She confirmed that this was how she had previously become aware of vacancies at the respondent’s plant. She further stated that on these previous occasions she made a written application to the respondent and had subsequently secured employment. She added that she did not apply for employment in May, 2011 because she was medically certified as unfit for work due to her pregnancy by her doctor at that time. In light of the foregoing I find that the complainant has failed to establish a prima facie case that she was discriminated against on grounds of gender as regards this recruitment process.

6. DECISION OF THE EQUALITY OFFICER.

I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that the complainant has failed to establish a prima facie case that she was dismissed in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 contrary to section 8 of those Acts and her complaint fails.

_______________________________

Vivian Jackson

Equality Officer

12 November, 2013

Footnotes:

[1] DEC-E2013-085

[2] DEC-E2011-156

[3] EED 032

[4] See for example Danosa v LKB Lizings SIA CJEU Case C-232/09

[5] Case C-438/99

[6] Council Directive 92/85/EC