P11/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                      CASE NO.

Celestica Ireland Limited

 - appellant                                                                                            

                                                                                                                                  P11/2012

against the recommendation of the Rights Commissioner in the case of:

Monka Samolis

 - respondent

under

MATERNITY PROTECTION ACT 1994 AND 2004

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr J.  Fahy B.L.

Members:     Mr T.  Gill

                     Ms H.  Murphy

heard this appeal at Galway on 8th October 2014 and 14th January 2015

Representation:

Appellant(s) :        Mr. John Brennan, IBEC, West Regional Office, Ross House,

                              Victoria Place, Galway

Respondent(s) :    Mr. Shane MacSweeney, MacSweeney & Company, Solicitors,

                             Lismoyle House, Merchants Road, Galway

This case came before the Tribunal by way of an appeal by the employer (appellant) against the decision of the Rights Commissioner ref: (r-095037-mp-10) under the Maternity Protection Act 1994 and 2004.

Respondent’s Case

The respondent was employed as a production operative by the appellant company from June 2007 working an average of 42 hours per week over a four week period. She worked in zone 1 of the production line and her work involved heavy lifting and exposure to adhesive chemicals. She gave evidence that she became aware that she was pregnant on 20 January 2010 and informed her supervisor known as (PW) on 21 January 2010 of her pregnancy. On doing so she asked to be moved from zone 1 to zone 2 as she did not want to be exposed to the adhesive chemicals or heavy lifting. The work involved on zone 2 was final inspection work and did not involve exposure to heavy lifting or chemicals. She gave evidence that (PW) replied to her request to be moved to “leave it with me”. She gave evidence that she asked for a risk assessment to be undertakenbut no such assessment was carried out. She told the Tribunal that the company did not undertake any analysis of her work and she was never told not to work with adhesives or to refrain from heavy lifting.

She gave further evidence that her request to be moved was not granted and she met again with (PW) on 28 January 2010 who told her not to worry about the adhesive. She spoke with him again on 4 or 5 February and was told that he understood her frustration at not being moved. On 12 February she felt unwell and reported sick for work on 13 February. She visited her hospital on the following day, 14 February and suffered a miscarriage. She believed that her miscarriage was caused by the work situation to which she was exposed. A medical assessment form from her consultant gynaecologist was opened to the Tribunal confirming that her miscarriage was likely to have resulted from exposure to working conditions.

She remained absent from work on medically certified illness until 4 March 2010 when she returned to work. She no longer works with the appellant company having returned to her native Poland in May 2012.

The next witness known as (MB) gave evidence that she worked as a production operative for the appellant company for 10 years until she was made redundant in June 2014. She had two miscarriages while working for the company and on her 3^rd pregnancy when she informed her doctor of the nature of her work she was certified as being medically unfit for work for the first 3 months of her pregnancy. She returned to work in January 2010 and asked her supervisor (PW) for a risk assessment to be undertaken immediately. She also met with (OM) from the company in mid February 2010 when she was given information about working with adhesives. She gave evidence that (OM) told her that the company did not have a policy in relation to the treatment of pregnant employees but that their main customer had a policy and he was going to copy that policy. The company subsequently carried out a risk assessment when she was 7 months pregnant and she was moved to a different, quieter production line.

Appellant’s Case

(PW) for the appellant company gave evidence that he was a production supervisor in 2009 and the respondent’s line manager. He told the Tribunal that he informed the respondent during her first pregnancy in 2009 not to do any heavy lifting and to stay away from adhesives. He did not keep a written record of the conversation and could not recall the exact date of the conversation.

(OM) gave evidence that he has worked for the appellant company since 2004 and is currently employed in an environmental and Health & Safety position. He received an e-mail from (PW) on 30 January 2010 informing him that (MB) was approx. 4 months pregnant and seeking advice on a risk assessment. He replied to this e-mail on 4 February 2010 informing him of the risks involved and the general hazards. He informed him that if the person works directly with adhesive they should be given the opportunity to either work in another area or be allowed to refrain from handling/changing etc. the adhesive. They should also refrain from the lifting of totes. The witness was not aware that the respondent was pregnant at this time and only discovered that two days later, on 6 February 2010. On becoming aware that the respondent was pregnant he informed (PW) that he should adopt the same procedures as outlined in the aforementioned e-mail of 4 February 2010. He told the Tribunal that the contents of this e-mail contained a generic risk assessment.

He gave evidence that prior to the claimant reporting sick on 13 February 2010 the risk assessment carried out was a verbal risk assessment and no record of such an assessment was kept by the company. That loop was formally closed by the company on 16 February 2010 when the risk assessment procedure became documented. The risk assessment procedure was then formalised and was produced by the witness to (PW) by way on an e-mail dated 16 February 2010. There was no specific risk assessment for pregnant employees prior to this but a verbal risk assessment was carried out. This has now been corrected and the company has in place a generic risk assessment for pregnant employees.

At the resumed hearing on the 14 January 2015 OM was unable to provide the Tribunal with a copy of the email dated the 16 February 2010. He gave evidence that his I.T system had crashed in June 2012 and all his emails were lost. The witness described moving the respondent immediately from zone 1 when they became aware of her third pregnancy as an overreaction.

PW the respondent’s team leader at the time had responsibility for four production lines. On the 4 or 5 of February 2010 the respondent informed him of her pregnancy asking him to keep it to himself for the moment as it was early in the pregnancy. He advised her to refrain from lifting or handling adhesive. He could not recall if she asked to move to zone 2. He informed OM by email on the 6 February 2010. He had no further role. The respondent worked two further shifts after informing him of the pregnancy. He never carried out any risk assessment with the respondent. The witness was unable to confirm if pregnant employees are moved from zone 1 currently as he retired from the company in July 2014.

Determination

The Tribunal carefully considered the evidence adduced by both parties. The Tribunal is satisfied that based on this evidence that there was a clear breach of section 18 of the Maternity Protection Act and accordingly the Tribunal finds that the appeal by the appellant company fails.

The Tribunal upholds the recommendation of the Rights Commissioner, save the amount awarded, which the Tribunal increases to €10,000.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)