ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002143

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002925-001	29/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002925-004	29/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002925-005	29/02/2016

Date of Adjudication Hearing: 24/05/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

I have never been issued with a written contract. On numerous occasions I requested a contract. the first time employer said new contracts were being drawn up. the second occasion employer would not interact with me. Third time I requested contract I asked for a meeting and employer wanted issues written down. she then refused to have the meeting. No contracts were ever issued to date.

On 19/1/16 I informed my employer that I was 5 weeks pregnant. I informed my employer at this early stage because my doctor had advised that I may have to attend for hospital appointments and I wanted to give adequate notice to my employer of this. My employer asked 'was it planned or unplanned'? and also stated 'I think its shocking to see all these young mothers continuously having babies and being put up in small hotel rooms - its a disgrace'. After this the employer did not take into account my pregnancy when children/heavy items needed to be lifted. The employer consistently continued to pick on me for inadequate reasons. There had previously been no issue with my work and no complaints made against me. This new attitude only started after employer found out I was pregnant. There was an issue about pay being late into our bank accounts so on the day of dismissal I had enquired from my employer if the pay would hit my account on the correct day that week. My employer approached me while changing a nappy, pushed me out of the way, and took over the changing of the child. She then told me to take my bag and coat and leave the premises. I asked why and where were my verbal and written warnings, if there was a complaint, and she told me she didnt need to give me one and she repeated for me to leave the premises. She also told me not to come back Monday as she had 2 lovely girls starting on Monday. I since wrote to my employer to ask for the reason for dismissal and her response was 'that she could not offer me a contract at that time'.

I was dismissed on 5/2/16 without any notice. I had previously informed my employer that I was pregnant and feel that her attitude to me changed from then on. On the day of dismissal my employer pushed me out of the way and told me to leave the premises that she didnt need me and that she had 2 more girls starting next Monday.

The Hearing

At the hearing, the Respondent accepted that they were in breach of the claim taken under section 7 of the Terms and Conditions of Employment Act 1994.

The remaining matter to be determined was whether there was an unfair dismissal which arose wholly or mainly as a result of the Complainant’s pregnancy (section 6 of 1977 Unfair Dismissals Act, as amended) in which case the Complainant is not excluded by not having completed one year’s continuous service in the employment.

The evidence of the Complainant was as follows:

She started her job with the Respondent as a child care worker on 21 September 2015
On 19 January 2016 she told AG, the owner of the Respondent and her employer, that she was five weeks pregnant. The conversation was also witnessed by a crèche manager, B.
Following this conversation the Complainant felt that the attitude of AG changed towards her.
The Complainant denied that she had not informed AG of her pregnancy
The Complainant showed texts that were sent to AG that refer to epu. This referred to Early Pregnancy Unit. This was sent when the Complainant missed work to attend hospital for a suspected ectopic pregnancy. The Complainant accepts that while not every person might know that epu referred to Early Pregnancy Unit, the text was evidence that she had already informed AG of the fact of the pregnancy
She also showed texts received from B, the crèche manager, who witnessed the Complainant informing AG of the pregnancy. These were texts of concern relating to the Complainant’s pregnancy, thus are evidence of the fact that B knew of her pregnancy.
The Complainant said that there had been one previous incident, where AG had been annoyed with her. This related to an absence from work the previous October, which was as a result of her two year old breaking his arm. The Complainant accepted her reprimand at the time because she felt that she had let down the Respondent, by missing work
The Complainant said that AG seemed to be avoiding her and was not friendly after the conversation on 16 January 2016. The Complainant believed that AG was not happy about the fact that she was pregnant.
On 4 February 2016 an incident occurred where AG came into the toddler room, where the Complainant was working and was annoyed. She asked the Complainant how often the children in the sleep room were being checked. The Complainant said that she couldn’t leave as she had 15 toddlers to mind on her own in the toddler room and couldn’t do the two jobs. The Complainant stated that AG then said “not for much longer.”
The Complainant asked AG what she meant by that and AG said that she did not have to explain herself.
The next morning the Complainant was changing a child’s nappy in the changing room. As the child appeared to have chicken pox, the Complainant’s manager, B, told her to stop doing the job because pregnant women should not be exposed to the chicken pox virus. B told the Complainant to contact the child’s mother and to text AG to inform her. The Complainant also texted AG that morning to remind her that her wages were due that day. There had been an issue previously about wages not going into employee’s bank accounts on time. There was no reply text from AG
At midday AG came into the changing room and seemed annoyed. The Complainant was changing a child’s nappy and AG said, in an aggressive way, that the Complainant’s wages had gone into her account. The Complainant said “ there is no reason to speak to me like that, I was only asking a question.”
At this AG became aggressive and elbowed the Complainant out of the way. AG told the Complainant to get out and that she had two new girls stating work on the following Monday.
The Complainant said “you have to give me a warning, if you are letting me go and AG said she “did not need to.”
The Complainant then collected her belongings and left the premises
On 8 February she wrote to the Respondent requesting the reasons for her dismissal to request a return to work
The Respondent replied stating that she was unable to offer her work at that time. There was no denial in the reply letter that a dismissal had occurred.

Respondent’s Submission and Presentation:

AG of the Respondent gave evidence as follows:

The Complainant started work on 21 September 2015 as a child care worker
Difficulties arose with the Complainant’s work performance in or around January 2016
These involved milk bottles not being removed from children’s bags and not being refrigerated.
When AG reprimanded the Complainant for this, the Complainant used foul language and threatened to walk off the work premises
AG stated that the Complainant was bad tempered and over reactive at this time.
On February 3, AG asked the Complainant had she checked the children’s sleeping room and why the sleep log had not been filled in.
The Complainant replied that “her head was fried” and that she “was off.”
This was the second time that the Complainant had threatened to walk off the job. On each time however, she was persuaded not to.
On 5 February 2016 the Complainant texted AG about her wages.
When AG came into work that day she went into the changing room where the Complainant was changing a nappy and AG told her that her wages had gone into her account.
The Complainant said “I f…ing wont hold my breath.” She then became irate and AG felt that she needed to take over the job of changing the child’s nappy as the Complainant was losing her temper. The Respondent asked the Complainant to step away from the child. The Complainant said “I’m sick of this place”. She got her belongings and left.
At no stage did the Complainant tell AG that she was pregnant.
At not stage did AG dismiss the Complainant. She points to the Complainant’s claim form which states two versions of events namely: “I had to leave my job due to the conduct of my employer” and later “ I was dismissed on 5.2.16 without any notice” This inconsistency supports the credibility of the Respondent over the Complainant, that no dismissal occurred.
Having resigned voluntarily, the Respondent did not wish to re engage the Complainant and wrote to her to say there were no positions available.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Decision:

Under the Terms of Conditions of Employment Act 1994 (the claim of which is conceded) I award 4 weeks @ €225.53 per week totalling € 902.12.

In relation to the Unfair Dismissal claim, there is a conflict on evidence in the case. On balance taking into account the text messages that support the Complainant’s version of events, I prefer the evidence of the Complainant. I accept her evidence that a dismissal occurred. This is supported by the fact that the Respondent had hired two new child care workers in or around the time of the incident on 5 February 2016. I accept too that this arose mainly as a result of the Complainant’s pregnancy.

In relation to loss arising from the dismissal, I am satisfied that the Complainant has attempted to mitigate her loss but has been unable to secure alternative employment. In all the circumstances of the case I award the Complainant, the sum of €4000.00

The total award therefore is €4902.12

Dated: 22^ND August 2016