ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000182

Complaint for Resolution:

Date of Adjudication Hearing: 19/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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..

Complainant’s Submission and Presentation:

The complainant had been assigned by the respondent, a recruitment and employment agency to work with a client company based at Dublin Airport as a check in agent. Her hourly rate was €10.40.

Her shift pattern involved four late shifts, followed by two days off, then four early shifts, with two days off. The early shifts began at 03.00.

She says that she advised her supervisor that she was seven weeks pregnant.

She developed bad morning sickness in the early hours so struggled to get up and go to work. She submitted medical certificates and was put on illness benefit for pregnancy related illness. She informed her immediate work colleagues and also the recruitment agency.

She then asked the recruitment agency whether she could do fewer early shifts and replace these with more late shifts as she could manage this.

On October 12^th 2015 her employer sent her an email stating that it was terminating her employment because she could not meet the requirements of the client’s shift pattern.

In her direct evidence she confirmed the narrative set out above and added that she was invited to attend a disciplinary hearing to answer complaints that she was making mistakes at the check in and also in relation to her high level of absenteeism.

This did not proceed because of her absence on certified sick leave.

The complainant said she posted medical certificates to the company’s registered business address on July 5^th, August 26^th and September 9^th all of which stated that she was suffering from a pregnancy related illness.

Respondent’s Submission and Presentation:

The respondent complained that it had not been given the opportunity  to resolve matters at mediation as it felt that there had been misunderstandings and some breakdown in communication which it could have addressed there.

GD, a director of the respondent company gave evidence that that the letter which the complainant saw as terminating her employment did not in fact do so. Its intention, in recognition of the problem with the early shift was to end the assignment to that particular client only. It claimed that it was not intended to terminate her contract altogether.  She said it was the company’s intention that, once well enough to do so, she would be returning to her position at the airport.

The company also said that it did not receive any medical certificates from the complainant and that while it was aware that she had been ill it did not know that her illness was pregnancy related or that she was pregnant.

GD said it only posted the complainant’s P45 and outstanding holiday pay to her at her request.

Findings and Conclusions

I have reviewed all the oral and written evidence which was laid before me prior to and in the course of the hearing into the matter.

There are two key issues to be decided here.

The first concerns the state of the company’s knowledge of the complainant’s condition and its claimed ignorance of the fact that she was pregnant.

The complainant says that she told her supervisor that she was pregnant and I accept her evidence in this regard. The obligation then fell on her supervisor to ensure that this was known to the relevant section of the company. Certain important obligations fall on employers to assess the general work environment and to carry out an assessment of its suitability for pregnant employees from a health and safety point of view. So the failure to do so represents a double failure on the part of the company.

Its employees in supervisory positions ought to know what obligations fall on them in this regard.

While the Respondent’s Contract of Employment (at point 4 therein) requires the employee to note that it is in the nature of the temporary work that there may be periods when no suitable work is available particular, very different principles apply where, as in this case, the condition giving rise to the ‘unsuitability’ of the current work is pregnancy related.  

It is not credible that the supervisor and the senior management got to the point of initiating disciplinary proceedings against the complainant over her absences and the subject of her pregnancy was never discussed.

If it was not discussed, which I do not accept as credible, then the company is nonetheless liable for the alleged inaction of its supervisor in this regard who should know what her responsibility is when such information s made known to her. The company would be well advised to review its processes for handling notification by its employees of pregnancy.

Secondly there is the matter as to whether a dismissal actually took place. Did the complainant reasonably interpret the letter she received from the company of October 12^th 2015, which the respondent characterised as a reassignment rather than a termination?

 What is actually stated in that letter is;

‘Your contract is being terminated on the 19^th of October and you have been given one week’s notice.’

This is not capable of any reasonable interpretation other than that placed on it by the complainant and which I, likewise do.

While that is preceded by the following;

‘In the future should your condition improve please contact me and we could possibly consider your return to Dublin Airport in the role of check in agent’

This is not the language of reassignment and I reject the company’s argument on this point. I conclude that this represents a dismissal and while she does not have twelve month’s service the dismissal, and the reason for it is clearly connected to her pregnancy and therefore falls within the jurisdiction of the Act, as pregnancy is one of the grounds which does not require a twelve month qualifying period

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.

I find that the complainant was unfairly dismissed as a result of her pregnancy and I award her €9,000 for the breach of her rights under the Act, being, for the purposes of illustration only, approximately equivalent to six months wages.

This figure represents compensation for infringement of her rights under the legislation and does not include any element relating to remuneration, and is therefore not taxable.

Dated:   23^rd February 2016