EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-132
PARTIES
Paulina Kolodziejczyk
(Represented by Richard Grogan and Associates)
-v-
Daragh Mulrooney
Trading as Cabra Dental Centre
File reference: EE/2014/504
Date of issue: 30th November 2015
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 – Gender, Marital Status, Family Status and Race -Discriminatory Dismissal
1.DISPUTE
1.1. This dispute concerns a claim by Ms Paulina Kolodziejczyk (the complainant) that she was discriminated against by Daragh Mulrooney, trading as Cabra Dental Centre (the respondent) on the grounds of gender, civil status, family status and race contrary when she was dismissed from her employment, contrary to section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 23 September 2014. On 6 August 2015, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 the complainant only. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 29 September 2013.
1.3. 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.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant, a Polish national, commenced employment with the respondent as a dental nurse/ receptionist in July 2013. The complainant has no medical qualifications.
2.2. The complainant submits that she never received any documentation from the respondent and never received any pay slips. The complainant submits that from July to December she was paid in cash, in that an envelope would be left each Friday at the front desk.
2.3. The complainant submits that she worked from nine to five every weekday and sometimes on Saturdays. The complaint submits that she was paid by bank transfer from January to the date of her alleged dismissal. The complainant submits that in April 2014 she advised her manager (Mananger A) that she was pregnant and that she submitted the relevant medical certificate a week or so later.
2.4. The complainant submits that on Friday, 23May 2014 she had to leave the workplace to attend a hospital as she was feeling unwell in connection to her pregnancy. The complainant says that Manager A told her that “if this continues that we will be happy to get someone else”.
2.5. The complainant submits that on the following Monday, the 26th of May 2014 that she contacted Manager A by phone to arrange for the purchase of some dental supplies. She says that Manager A told her during that call that she would not be getting paid for last week and “that that’s it” and she would not be getting a P45. The complainant submits that there was no letter of dismissal, disciplinary hearing or procedures of any kind.
2.6. The complainant submits that Manager A wrote to Darragh Mulrooney on the 19th of May advising that the complaint had brought her pregnancy to his notice but without a medical certificate.
2.7. The complainant submits that the named respondent has attended a rights commissioner hearing relating to her conditions of employment. The complaint has obtained some documentation from the respondent through a data protection request relating to their records of her employment. This documentation includes two pay slips, a contract of employment (signed by Manager A but unsigned by the complainant) and a trainee agreement covering the period from August to November 2013 (again signed by Manager A but not the complainant). The complainant contends that she had never seen any of these documents during her employment.
Race
2.8. The representative for the complainant submits that the complaint did not raise any issues with the irregularities of her conditions because she was a foreign national, as she was unaware of her full rights.
3. RESPONDENT'S SUBMISSION
3.1. The respondent, despite requests, has not submitted any submission for the consideration of this tribunal. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing as both registered (with delivery confirmation) and ordinary notification was sent to the respondents business address in good time.
4. FINDINGS & CONCLUSION
4.1. At the start of the hearing the complainant withdrew her claims in relation to marital status, Therefore, I have to decide if the complainant was discriminated against in relation to dismissal on the grounds of gender, family status and race. In reaching my 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.
4.2. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states:
“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.Section 6(1) of the Employment Equality Acts, 1998 and 2004 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)…..”.
Family Status
4.3. Section 6 of the Acts makes it clear that I have to consider whether the complainant was treated less favorably than someone with a different family status. No evidence was adduced by the complainant to show she was treated differently than anyone else due to her family status. I therefore find that the complainant has failed to establish a prima facie case of discrimination in relation to family status.
Race
4.4. The representative for the complainant submits that the complaint did not raise any issues with the irregularities of her conditions because as a foreign national she was unaware of her full rights. The complainant has not adduced any evidence in regards to this assertion and therefore I find that she has failed to establish a prima facie case of discrimination in relation to race.
Pregnancy
4.5. In a line of authorities starting with the judgement in Dekker v Stichting Vormingcentrum voor Junge Volwassenen the Court of Justice of the European Union (formerly the ECJ) has consistently held that since pregnancy is a uniquely female condition any less favorable treatment of a woman on grounds of pregnancy is direct discrimination on grounds of gender. Since this judgement the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. In Brown v Rentokil the CJEU held that the entire period of pregnancy and maternity leave was a "protected period" during which the Pregnant Worker's Directive prohibits dismissal of an employee for pregnancy related matters. The Court restated this position more recently in Danosa v LKB Lizings SIA when it held " ...pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.". The Court went on to say "During that period Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided the employer gives substantiated grounds for the dismissal in writing.".
4.6. In the light of these CJEU judgements it is clear that where a pregnant employee is dismissed the employer must bear the burden of proving that the dismissal was based on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case where pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman's pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the employer.
4.7. In the instant case the complainant worked for the respondent for just under a year and her employment ended soon after she informed her employer that she was pregnant. I found the complainant to be a credible witness and I accept her account of events. The complainant has therefore established a prima facie case and it is a matter for the respondent to prove the absence of discrimination. I consider the manner in which the complainant’s employment was ended particularly objectionable in comparison to complaints of a similar nature.
4.8. The respondent has made no submissions to this Tribunal and has not attended the hearing, he is therefore unable to rebut the prima facie case of discrimination that I have found the complainant has made. The complainant’s complaint must therefore succeed.
5. DECISION
5.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
a) the respondent discriminatorily dismissed the complainant on the ground of gender.
5.2 Section 82 (i) (c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82 (4) is two years pay. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate
5.3 I order the respondent to pay the complainant €28,000 which I consider to be a fair and equitable figure in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Peter Healy
Equality Officer
30 November 2015