UD944/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                             CASE NO.

Mary Freeman                                                                                            UD944/2014

-        Claimant                                                                        

Against

T. J. Bellas Limited

-        Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. D. Donovan BL

Members:     Mr. J. Browne

Ms. S. Kelly

heard this claim at Wexford on 29^th May 2015

                                             and 31^st July 2015

Representation:

Claimant:       Ms. Tara Geoghangan BL instructed by:

Sean Ormonde, Sean Ormonde & Co., Solicitors, Suite 19, The Atrium,

                        Canada Street, Waterford

Respondent:    Eric Furlong, Coughlan Kelly Solicitors, Trinity Chambers, South Street,

                        New Ross, Co. Wexford

The determination of the Tribunal was as follows:-

Background:

The respondent is a take away and restaurant business open from 10 am to 11pm daily. At the time in question there were three full-time and three part-time staff employed including the owner (JC) and the claimant. The claimant was employed on a casual basis from the 17^th July 2013 to the 27^th January 2014.

The respondent claims she dismissed the claimant due to the downturn in business. The claimant claims she was dismissed by reason of her pregnancy.

Respondent’s Position:

The owner (JC) gave evidence. She explained that she had taken over the business from her husband in July 2013 following a personal matter. She was a qualified hairdresser in her own right running her own salon.

The claimant had originally worked for JC’s husband for a short period during May 2013 but had been left go because business had become quiet. When JC took over the business one of the staff also left the business. As it was a busy time she contacted the claimant and asked would she work for her as she had experience working on the premises before.

JC told the Tribunal that the claimant had not received a written contract of employment and had compensated her in the amount of €500 for this irregularity following a recommendation from a Rights Commissioner.

In mid-August 2013 JC employed another member of staff (J) who had seven years’ experience in the pizzeria/restaurant business. The claimant was employed as a casual worker and would work different hours per week depending on how busy it was sometimes working over 40 hours per week. The claimant was constantly requesting more hours and did not avail of her annual leave allowance preferring to work. JC said she tried to get the claimant to take leave on occasion but to no avail.

In November 2013 the claimant informed JC and her colleagues that she was pregnant. All wished her well and told her to take things a little easier. JC again told the claimant to take some leave but she declined. JC told the Tribunal that the claimant seemed to be experiencing a difficult pregnancy.

On the 12^th January 2014 the claimant contacted JC at her home on a Sunday to discuss her rostered work hours and the lack of same. JC explained to the Tribunal that the rosters were compiled on Thursdays for the following week. When the claimant had contacted her she had been rostered for and had already worked 11 hours for the week in question. JC later met the claimant at the restaurant to discuss the matter. She informed the claimant that due to the downturn in business she would have to reduce her hours but she would give her more when it got busy again. She said that the claimant was not happy and began to shout. A customer arrived during this incident. JC told the claimant that she would see her at the HASSP course scheduled for the 14^th January 2015 and then she and the claimant left.

The following day JC said that she received a call from a nurse in Wexford General Hospital informing her the claimant had been admitted to the early delivery unit. JC told the Tribunal that she found it highly unusual the claimant would get a nurse to contact her and told the nurse this. Unfortunately, the claimant suffered a miscarriage.

On the 15^th January 2014 JC texted the claimant to enquire how she was. Two days later the claimant contacted one of her colleagues at the restaurant informing her that she, the claimant, could come back to work and asked why she was not included on the work roster. On the 19^th January 2014 the claimant and JC spoke over the telephone. The claimant wanted to know why her name had not been included on the roster or that week. JC replied that she was unaware the claimant wanted to return to work that week. JC asked the claimant to come see her the following day.

On the 20^th January 2014 JC and the claimant met in the restaurant. JC informed the claimant that unfortunately she would have to let her go due to the downturn in business but that she would contact her when it got busy again. The claimant was not happy and requested her P45 straight away. On the 23^rd January 2014 JC organised the claimant’s P45 and final payslip.

On cross-examination JC explained that the only reason she had let the claimant go was because the business was so quiet. She had even reduced the opening hours of the restaurant by 1 hour per day to cut overheads and staff wage costs. She said she had never had an issue with the claimant’s work and would have taken her on again if and when business had improved.

When asked how she had decided who she would dismiss she replied that she had kept J on even though she was hired after the claimant due to her previous experience in the pizzeria/ restaurant business. J had more experience than the claimant.  

Claimant’s Position:

The claimant gave evidence. Originally she was employed by JC’s husband who left the business in July 2013 wherein JC took over the running of the business. She worked up to 40 plus hours per week in the restaurant/take away but also worked extra hours, not included on the rota, as a delivery driver at the weekends. She said that she had as much experience as J.

In early December 2013 she informed her colleagues and JC that she was pregnant. Following this announcement she said JC began to treat her differently. The claimant said that she was told by another employee that there had been an employee previously who was pregnant and that she was treated badly by the respondent. She said that her hours were decreased and when JC spoke to her it was often in a rude manner compared to her colleagues, that she was bullish, rude and aggressive.   The claimant said that she felt the respondent wanted to push her out the door. The claimant told the Tribunal that she did not answer JC back as she knew JC could let her go and she wanted to keep her job.

The claimant said the delivery man left in December and that full-time hours were available in this position and it was not offered to her.  

On the 10^th January 2014 the claimant worked her rostered hours. On the 11^th January she received a call approximately 15 minutes before her scheduled start time to inform her she was not required that day as the premises was so quiet. On the 12^th January 2014 she checked the rota to see what other hours she was working that week and discovered she had none. She contacted JC who was “very aggressive” over the phone, JC said she would see her later that day in the takeaway. When they met later that day JC told her that she would decide when and who worked and which staff were given hours. The claimant informed JC she could not afford to have no hours of work.   The claimant said when she questioned the respondent about the lack of hours she was attacked.   She said the respondent asked her was she “fit for work”.

Unfortunately the following day the claimant suffered a miscarriage and was hospitalised on and off for a further four days. On the 13^th January she asked a nurse to contact her place of employment to inform them she would be unable to attend the training course the following day.

On Friday 17^th January 2014 she contacted the respondent’s premises to tell a colleague she was available to carry out her delivery driver duties but was informed JC had someone else doing deliveries. The claimant told the Tribunal that on the 18^th January 2014 she checked her bank account and had found extra monies had been paid into her account by the respondent. She said that the following day JC contacted her to ask her to come in and see her tomorrow even though she was rostered to work on the 21^st.

The following day she met JC who informed her that she had to let her go as the business was not busy enough to roster her any hours. The claimant told the Tribunal that she felt JC had dismissed her because she was pregnant as other staff who had been taken on after her were kept on.

The claimant gave evidence of loss and evidence of efforts to mitigate her losses.   Since the claimant’s employment finished with the respondent she only worked for 2 weeks mid February 2014 with Four Star Pizza.  

On cross-examination she stated that she had not mentioned to JC during the phone call on the 19^th January about the extra monies paid into her bank account. When put to her that these monies had been paid to all staff as holiday pay on the 9^th January 2015 she said she had not checked her account until the 18^th and would not know what other staff were paid.

It was put to the claimant that another employee had recently come back to work following maternity leave and that the available hours had to be divided among three part-time employees rather than two.

The claimant was asked to particularise how she was treated differently and that her assertions regarding treatment were vague and non-specific.   The claimant said she could not be more specific but that she was ignored and that the respondent was rude to her and raised her voice.

Determination:

Having considered the evidence adduced at the hearing the Tribunal finds that the dismissal of the claimant was in no way attributable to the claimant’s pregnancy.   This is supported by the fact that the respondent had shortly before the termination of the claimant’s employment taken back an employee who had been on maternity leave.   The Tribunal finds the claimant’s assertions regarding the change in treatment by the respondent vague and unconvincing.

Rather the Tribunal finds that the dismissal of the claimant was due to a combination of the need to divide the hours between three rather than two employees, a down-turn at the time in the respondent’s business, the difficult position the respondent found herself in as a result of her husband leaving the business and the respondent becoming irritated by the claimant continually looking for more hours. The Tribunal further notes that the claimant was no longer pregnant when she was dismissed.

Whereas some of the reasons for the dismissal of the claimant may not be fair and whereas the procedures pertaining to the dismissal of the claimant were otherwise than fair in circumstances where the claimant did not have the one-year service requirement her claim could only succeed if the Tribunal found that the dismissal was related to her pregnancy.

Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)