EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-119
PARTIES
KATARZYNA WOZNICZKA
(Represented by Blazej Nowak)
-v-
COUVERTURE LIMITED
(Represented by IBEC)
File reference: EE/2013/129 & EE/2013/185
Date of issue: November 2015
HEADNOTES: Employment Equality Acts, Section 77 Victimisation.
DISPUTE
This dispute concerns a claim by Ms. Wozniczka that she was victimised as a direct result of filing a claim against the respondent company.
The complainant referred her claim to the Director of the Equality Tribunal on 21st February, 2013 under the Employment Equality Acts. On 17th August, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, 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 which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 1st September, 2015.
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
COMPLAINANTS' SUBMISSION
The complainant commenced work in October, 2004 with the respondent. She started off working on the production line and following two promotions she became a supervisor.
The complainant submits that following her return from maternity leave in October, 2012 she was placed in a different role, her previous role having been made redundant whilst she was on leave. Margaret Lynch discussed the role with her and she stated that she was willing to try it out. She did an English course which the respondent organised and paid for. The purpose of the English course was to facilitate her move into the new role.
Initially the role was a full time position. After approximately four or five months the complainant was told the role would only be part time going forward however she would also have twenty hours doing promotions.
After a few weeks the complainant concluded that due to her family commitments she could no longer carry out the promotional side of the role as it required her to travel outside of the Dublin area and involved longer hours.
The complainant requested a full time administrative position but at that time there was no such position available.
The complainant sought legal advice. Her solicitor wrote to the respondent on the 21st February, 2013 outlining the complainant’s complaints. The following day she was dismissed by reason of redundancy.
RESPONDENT'S SUBMISSION
Margaret Lynch, Managing Director of the respondent stated that she formed the company with her sister in 1998. They make and supply fresh desserts to a range of Hotels and businesses.
In 2004 they had approximately 30 employees and the business was doing well. By 2008 the effects of the recession in Ireland together with the number of Hotel closures had a very substantial negative impact on the business. In 2009/2010 it became apparent that in order to ensure the company’s survival, a complete restructure was required.
Various managers and employees left the company during the transitional period and were not replaced. By the time the complainant returned from her maternity leave the company had been completely restructured. Her role, prior to going on maternity leave, no longer existed. The complainant accepted that.
It was explained to the complainant that she would now be required to carry out a dual role, partly administration and partly as a sales assistant. Celine worked in the sales department and from time to time she needed assistance. The complainant was nervous about the role but agreed to try it out.
The respondent accepts that the complainant’s terms and conditions did change but they did so with the agreement of the complainant. Her remuneration remained the same.
Approximately three times a year there are Catering Shows which the respondent attends. They are vital for future business. These shows run for two or three days and do require one or two late evenings.
The Catex show was on in the RDS in February. The respondent called a meeting with the complainant on a Tuesday in relation to staying at the show until approximately 8pm on the Wednesday. She said she couldn’t stay. She also stated that she wanted her old job back and wasn’t happy in her new role. Her old role no longer existed. The respondent based on the complainant’s expression of dissatisfaction with the new role decided to make her redundant from her old position. That decision was made on the same day the respondent received the letter of complaint from the complainant’s solicitor.
4. Victimization.
4.1 Section 74 – Victimization shall be construed in accordance with subsection (2)
(2) For the purposes of this Part, victimization occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith- (a) sought redress under this Act or any enactment repealed by this Act for discrimination or (b) for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment.) (c) Opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, or(d)Given evidence in any criminal or to her proceedings under this Act or any such repealed enactment, or (e)Given notice or an intention to do anything within paragraph (a) to (c).
4.2 The Complainant lodged her complaint on the 21st February, 2013 which said complainant was received by the respondent on the 22nd February, 2013, the day she was made redundant.
4.3 The complainant states that the only reason the respondent decided to make her redundant on the day she did was because she had receive the letter of complaint from her solicitor.
4.4 The respondent states that the only reason she decided to make the complainant redundant from her old position, despite having been in the new position for approximately five months was because of her unwillingness to remain on in that position and because there were no other positions available in the company at that time.
4.3 I am satisfied that the only reason the complainant was made redundant from her old position was because of her expression of dissatisfaction with her new role and her unwillingness to remain on in that position. I am further satisfied that the respondent did everything possible to keep the complainant on in employment albeit in a different role.
5. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the complainant was the subject of victimisation pursuant to Section 74 of the Act. In reaching a decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
I am satisfied that the only reason the complainant was made redundant from her old position was because of her expression of dissatisfaction with her new role and her unwillingness to remain on in that position. I am further satisfied that the respondent did everything possible to keep the complainant on in employment albeit in a different role.
The complainant has failed to establish a prima facia case of victimization pursuant to Section 74 of the Act.
DECISION
6.1. I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
The complainant failed to establish a prima facia case of Victimisation.
The complaint fails.
_____________________________
Niamh O’ Carroll Kelly BL
Adjudication Officer/Equality Officer
November 2015.