ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003836

Complaint for Resolution:

Date of Adjudication Hearing: 26th September 2016.

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:  

The Complainant was employed by the Respondent for a period of 6 weeks from 24^th November 2015 and based on her P45 her weekly rate of pay was €318.84c.   The Complainant was submitting that she was unfairly dismissed because of her pregnancy in breach of her rights under the Act.

Summary of Complainant’s Case:  

The Complainant said she began employment with the Respondent on 24^th November 2015, in accordance with her Contract of Employment of 20^th November 2015.   She was employed as a General Operative on the evening shift in the Production Department.

The Complainant attended work on the evening of 16^th December 2015 and she worked her full shift.   She experienced pains throughout her shift, but put them down as ordinary premenstrual syndrome symptoms.   After she finished work the Complainant felt very unwell and she went to bed at approximately midnight.   She was passing blood for some time and she felt that she was going to faint.     The Complainant’s partner carried her to the toilet at approximately 2.00am and he called an ambulance.   The Ambulance arrived shortly and she was taken to the named local General Hospital, where she underwent a variety of tests.   She was kept in the Emergency Unit and subsequently the Early Pregnancy Unit of the Hospital until the afternoon of 17^th December 2015, where she underwent various tests throughout that time.

On the morning of 17^th December 2015, the Complainant telephoned the named HR Manager of the Respondent to inform her of her ill health and to confirm that she would not be in a position to work on that day.   The Complainant did not get to speak directly to the HR Manager, but she left a voice message with the details of her employee number and the fact that she would be unable to attend work.   The Complainant did not get a return call of her telephone call or voice message.

At the Early Pregnancy Unit, an Ultrasound was performed and no findings were made on it.   She was informed that as no findings were made on the Ultrasound, that she could return home and that in the event that there was a finding she would have to have emergency surgery.   The Complainant was informed that she had an ectopic pregnancy and was given a Medical Certificate from the Hospital, in which she was certified unfit for a period of 10 days.

The Complainant returned home on the afternoon of 17^th December 2015 and she was confined to bed due to ill health for approximately one week afterwards.

On the afternoon of 17^th December 2015 at approximately 3.00pm, the Complainant’s partner delivered the Medical Certificate to the Respondent; he rang the bell a number of times at the Reception of the Respondent and was met by what he described as a blonde woman in her thirties.  

He asked for a HR representative, but did not meet or speak with one; he explained the position in relation to the Complainant’s ill health and handed in the Medical Certificate, the woman took a copy of the Medical Certificate and handed it back to him.   The Medical Certificate clearly states that the Complainant was treated by the SHO of the Resident Gynaecologist in the Hospital.  

The partner also delivered a Medical Certificate from her GP to the Offices of the Respondent on the afternoon of 18^th December 2015.   Again he rang the bell a number of times and was answered by what he described as a woman with long black hair in her late thirties or early forties, he handed her the Medical Certificate confirming the Complainant’s had had a miscarriage.

The Complainant again attended the General Hospital on 20^th December 2015 for further tests.   She also attended her GP on 21^st December 2015.   On that same date her partner again delivered to the Offices of the Respondent a further Medical Certificate from the Complainant’s GP.

On 29^th December the Complainant again visited the Hospital for further tests, on the way home from the Hospital she went to the Offices of the Respondent to provide them with a further Medical Certificate received from the Hospital for the period from 29^th December 2015 to 4^th January 2016.   She requested to speak to speak with the HR Manager, but the HR Manager was unavailable.   The Complainant again left a voice message on the HR Manager’s telephone informing her that she would be unable to work until 4^th January 2016.   The Complainant was mindful of informing the HR Manager the up-to-date position with regard to her health as she was fearful of losing her job.

On the same date the Complainant received a telephone call from the HR Manager and she confirmed to the HR Manager that she had had a miscarriage.   She was informed by the HR Manager that she was “sick for too long” and she was “being suspended” and that her “P45” would be sent out to her.

On 6^th January 2016, the Complainant received an envelope containing her P45, which contained a date of cessation of employment of 18^th December 2015.

The Complainant then consulted with her Solicitor and a Letter of Claim was sent by her Solicitor to the Respondent Company Secretary.   Her Solicitor received a letter from a Solicitor on behalf of the Respondent stating that what had occurred was an unfortunate breakdown of communications.   The Complainant said that this contention is entirely baseless and is directly contrary to the facts of the case.

The Complainant submitted that it is evident from the foregoing and the facts of the case that she was summarily dismissed by reason of the fact of her pregnancy in breach of Section 6 of the Unfair Dismissals Act 1997.

The Complainant gave evidence of her efforts to secure alternative employment and mitigate her losses.

The Complainant sought that her complaint be upheld.

Summary of Respondent’s Position:

The Respondent was not present or represented at the hearing and they sent no submissions.

Findings and Decision:

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

Section 8 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.

I note that the Respondent was not present or represented at the Hearing and they sent no submissions, accordingly I only have the evidence and submissions of the Complainant to rely upon in these matters.

Based on the uncontested evidence of the Complainant I find and decide as follows:

I find and decide that the Complainant was fully aware of the Complainant’s pregnancy and her miscarriage at and before the time of her dismissal and in that respect I note the following:

• The Respondent was informed by telephone by the Complainant on the morning of 17^th December 2015 of her absence and the reasons for her absence.

• On the afternoon of 17^th December 2015 at approximately 3.00pm the Complainant’s partner delivered a Medical Certificate from the Hospital to the Respondent.   This Certificate clearly states that the Complainant was treated by the Senior House Officer of the Resident Gynaecologist in the Hospital.

• The Respondent received a further Medical Certificate from the Complainant’s GP on 21^st December 2015 confirming her miscarriage

• On 29^th December 2015, the Respondent was provided by the Complainant with a further Medical Certificate from the Hospital and again the Complainant’s pregnancy and miscarriage would have been obvious from this Certificate.   The Complainant also rang the Respondent HR Manager and left her a voice message in which she confirmed that she had had a miscarriage.

• On 4^th January 2016, the Complainant received her P45 in the post, this letter would have been sent by the Respondent on either the 4^th or 5^th January 2016, this in turn means the Respondent had been informed of the Complainant’s pregnancy and miscarriage on either 4 or 5 occasions in the 2.5 weeks before they dismissed her

On the basis of the above findings I am completely satisfied that, contrary to the letter from the Respondent’s Solicitor, the Respondent could not have failed to be aware of the Complainant’s pregnancy and miscarriage.

Based on the above and the uncontested evidence of the Complainant I have concluded and I find and declare that the Complainant was dismissed on the basis of her pregnancy and miscarriage and accordingly as provided for in Section 6(2) [(f) of the Act it is an unfair dismissal.

In considering the appropriate redress I have taken all factors into account including the view of the Complainant as expressed at the Hearing and I have concluded that there is an absence of the minimum level of trust necessary to sustain an employer/employee relationship and accordingly I have concluded that the only appropriate redress is compensation in the instant case.

The Complainant was unfairly dismissed by the Respondent and I require the Respondent to pay him compensation in the sum of €12,000.00c within 6 weeks of the date of this decision.

Dated:   12^th December 2016