Adjudication Officer/Equality Officer’s
Decision No: DEC-E/2016/040
Parties
Druciarek Wojcica
(Represented by Mr. William Kelly BL
Instructed by Hickey and Company- Solicitors)
-v-
Allied Logistics Ltd t/a Allied Foods.
(Represented by IBEC)
File No: EE/2012/359
Date of issue: 3 March, 2016
Employment Equality Acts, 1998-2011 – Sections 6 & 8 –discriminatory treatment – dismissal – gender- family status- maternity leave – fixed term contract
1. DISPUTE
This dispute involves a claim by Ms. Ewelina Druciarek Wojcica (“the complainant”) that she was (i) discriminated against by Allied Logistics Ltd (“the respondent”) on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts as regards access to employment and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts.
2. BACKGROUND
2.1 The complainant was employed by the respondent as an Office Administrator under a series of fixed-term contracts between May, 2010 and April, 2012. The complainant contends that the respondent’s decision not to renew her employment when her fourth fixed-term contract expired in April, 2012 constitutes discrimination of her on grounds of gender and/or family status contrary to the Employment Equality Acts, 1998-2011 as she was on maternity leave at that time after giving birth to her daughter the previous January. The respondent rejects the complainant’s assertions stating that there were factors unconnected with the complainant’s pregnancy, maternity leave or family status which gave rise to the termination of her employment at the expiry of her fixed-term contract.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 17 October, 2012. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 16 February, 2015 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 4 March, 2015. In the course of the Hearing Counsel for the complainant confirmed that his client was advancing an additional and/or alternative argument to the allegation of discriminatory dismissal in that she was discriminated against on grounds of gender and family status as regards access to employment when the respondent failed to renew her fixed-term contract in April, 2012. It was noted that this issue was first raised in the complainant’s submission which was received by the Tribunal on 13 March, 2013 and it is therefore referred outside of the period prescribed at section 77(5)(a) of the Employment Equality Acts but within the period prescribed by section 77(5)(b) of that statute. The parties were invited to make submissions on this matter subsequent to the Hearing.
3. PRELIMINARY TIME LIMIT ISSUE.
3.1 Counsel for the complainant submits that the Tribunal has a certain degree of latitude in permitting complainants to expand upon the complaint referred on the initial complaint form (EE1 Form). Counsel further submits that the EE1 Form is not prescribed by statute and cites the judgements of the High Court in County Louth VEC v Equality Tribunal & Brannigan[1] and Clare County Council v Director of Equality Investigations[2] in support of this argument. Counsel further argues that in the former authority cited McGovern J held that “so long as the general nature of the complaint ….remains the same” it is permissible to amend a claim so long as the respondent is afforded a reasonable opportunity to deal with the complaints in order to avoid prejudice to that party. Counsel states that the EE1 Form clearly indicates the nature of the complaint and the discriminatory grounds it is advanced on. He further submits that the respondent was on notice from March, 2013 that the complainant was advancing a complaint of discrimination on those grounds as regards “access to employment” and consequently, it was on sufficient notice of the case it was defending.
3.2 It is submitted on behalf of the respondent that the complaint of “access to employment” was only introduced by the complainant as an additional and/or alternative element of her complaint at the outset of the Hearing on 4 March, 2015. It argues that the expansion of the complaint at that juncture is statute barred and is not therefore properly before the Tribunal.
3.3 The essence of the argument advanced by Counsel for the complainant is that the initial complaint form referred to the Tribunal encompassed both elements of her complaint (i) she was dismissed in circumstances amounting to discrimination on grounds of gender and family status and (ii) she was discriminated against on the same grounds as regards access to employment when her fixed-term contract was not renewed when it expired in April, 2012 and consequently the statutory period(s) prescribed at section 77(5)of the Employment Equality Acts do not apply. I have carefully examined the EE1 Form referred by the complainant on 17 October, 2012 and I do not accept this proposition. Whilst I accept Counsel’s interpretation of the High Court authority cited, the circumstances of the instant case can, in my view, be distinguished. The EE1 Form referred on the complainant’s behalf by her solicitor states that the complainant is alleging she was dismissed for discriminatory reasons on grounds of gender and family status. The narrative furnished on behalf of the complainant in the section of the EE1 Form entitled “Complaint Specific Details” states as follows “I was let go while I was on maternity leave with no reason provided…”. It makes no reference whatsoever to the circumstances surrounding the alleged dismissal or that the complainant contends she was denied access to employment. Taking the ordinary meaning of the words “dismissal” and “access to employment” I am of the view that they denote distinct stages of the employment relationship which arise at opposite ends of that relationship. Even if I were to accept Counsel’s arguments in the instant case – that they arose on or around the same time as each other – I am satisfied that the first time the access to employment element of the complainant’s complaint was mentioned was in the submission filed on her behalf to the Tribunal which was received on 13 March, 2013. In the course of the Hearing it was confirmed that the last date of discrimination was 22 April, 2012. Consequently, this element of the complaint was referred outside of the six month period prescribed at section 77(5)(a) of the Acts. This period can be extended to a maximum of twelve months in accordance with section 77(5)(b) of the Acts where “reasonable cause” has been shown for the delay. The complainant has failed to show “reasonable cause” to enable her avail of this latter provision and I therefore find that this element of her complaint – access to employment – is not properly before me for investigation.
4. SUMMARY OF COMPLAINANT’S CASE
4.1 The complainant states that she commenced employment with the respondent on 31 May, 2010 as a Temporary Administrator. She states that this contract was fixed-term in nature and concluded on 26 November, 2010 in accordance with the terms of that contract. She adds that she was immediately re-engaged on a second fixed-term contract, this time as a Contracts Administrator, and that this contract expired on 1 April, 2011 in accordance with its terms. The complainant states that the role of Contracts Administrator involved additional duties and more responsibility. She further states that on the expiry of this contact she was immediately re-engaged in the same role on a third fixed-term contract which ran until 22 July, 2011. She adds however, that the duties she performed, the location of her employment and her attendance pattern were different during this period to those she had previously experienced. The complainant states that in May, 2011 she learned she was pregnant. Shet further states that she was initially reluctant to announce her pregnancy as she was conscious of the fact that she was providing maternity cover for another employee at that time and given her (the complainant’s) belief that she had made herself indispensable to the respondent’s operation due to her aptitude and work ethic, she was apprehensive about how news of her pregnancy would be received. In the course of the Hearing the complainant initially stated that she could not recall to whom in the respondent organisation she had eventually advised of her pregnancy but stated it was within a couple of months of her finding out. However, later in the Hearing she stated that she had informed Mr. A, the Administration Manager of her pregnancy sometime in mid-May, 2011 and that she had showed him a letter from her GP confirming her pregnancy.
4.2 The complainant states that immediately her third fixed-term contract expired on 22 July, 2011 she was re-engaged as a Contracts Administrator on a fourth fixed-term contract which covered the period 22 July, 2011- 22 April, 2012. She adds that she commenced maternity leave on 4 January, 2012. She further states that she heard nothing from her employer until sometime in May, 2012 when she received a payment of €1,700 direct to her bank account. She adds that she attended the respondent’s office on 5 June, 2012 to enquire about the payment and to give notice of her intention to return to work at the end of her maternity leave, but was unable to speak to anyone in authority and she left. She further states that she subsequently received correspondence from the respondent enclosing her P45 and advising her employment had terminated on 22 April, 2012. The complainant adds that on 14 September, 2012 the respondent informed her solicitor that due to the loss of significant piece of business in October, 2011 around 170 jobs were lost in the company, including positions in Administration, and subsequently there was no need to extend the complainant’s contract further. The complainant states that her employment was not terminated at this time but she was assigned additional duties when the Administration Office and the Transport Office amalgamated – duties which had previously been performed by employees who lost their jobs in October, 2011- and that she worked in this new environment until she commenced maternity leave in early January, 2012.
4.3 The complainant states that she thought she had an automatic right to have her contract extended for a further period in April, 2012 because nobody had told her otherwise, there were no issues with her performance and she was trained to work in several areas of the company. She adds that in October, 2011 following the loss of the major business contract, Mr. A spoke with her and advised her that “her job was safe”. In the course of the Hearing she confirmed that three employees in the Administration Office had lost their jobs in October, 2011, adding that she thought they were all engaged on fixed-term contracts. She added that Mr. X, who had worked exclusively on the contract which the company lost in October, 2011, transferred to the Administration Office shortly thereafter and he replaced her when she went on maternity leave. She added that this man was a permanent full-time employee with considerable service. The complainant states that a number of her colleagues had been absent from work on maternity leave in the months immediately preceding her absence on similar leave and contends that the respondent formed the view that females (including her) could not be relied upon because they would become pregnant and cause considerable disruption to the respondent’s business operations.
4.4 Counsel for the complainant states it is well established that the entire period of pregnancy and maternity leave constitutes a special “protected period” where dismissal of a pregnant employee is not permitted save in exceptional circumstances unconnected with those factors[3] and that any adverse treatment of a pregnant employee in consequence of that pregnancy amount to direct discrimination on grounds of gender. Counsel also relies on Article 10 of the Pregnant Workers’ Directive[4] which requires an employer to provide written notice to an employee who it intends to dismiss during the “protected period” of the grounds for her dismissal. He adds that this requirement was addressed by the Labour Court in Assisco Assemby Ltd v Brenda Corcoran[5] and that the failure of an employer to comply with this requirement and communicate the reasons for the termination of a protected employee’s employment during that period is fatal to its defence. Counsel adds that the respondent had ample time to prepare and notify the complainant that her employment was terminated but she was unaware this was the situation until after she visited the respondent’s office on 5 June, 2012. Finally, Counsel seeks to rely on the judgment of the ECJ (as it then was) in Melgar v Ayuntamiento de los Barrios[6] wherein that Court held that the Article 10 of the Pregnant Workers’ Directive applies to workers on fixed-term contracts.
5 SUMMARY OF RESPONDENT’S CASE
5.1 The respondent rejects the complainant’s allegations in their entirety. It states that the decision not to renew the complainant’s fixed-term contract in April, 2012 arose because cover of the position she held during the period of the previous contracts was no longer required following the restructuring of the respondent in October, 2011 when it lost a significant volume of business. The respondent adds that the loss of this particular major contract, the third occasion this had happened since 2009, jeopardised its ability to continue trading unless action was taken and in that regard it had no option but to restructure its operating model with the loss of 170 positions, the majority of whom were permanent full-time employees, as well as a reduction in the need for agency and temporary fixed-term staff. It adds that these job losses were spread across all areas of the operation and staff were selected on the basis of volunteers and then last in-first out (LIFO). The respondent states that the claimant’s employment came to a natural conclusion by virtue of arriving at the date specified in her contract – 22 April, 2012.
5.2 The respondent confirms that the complainant commenced on 31 May, 2010 on a fixed-term contract and that she was re-engaged on three further fixed-term contracts- with the final contract expiring on 22 April, 2012. It adds that at all times the complainant’s employment was temporary in nature and that this fact was reflected in each of the contracts she signed. It states that following the loss of the major business in October, 2011 the complainant’s area lost a number of posts and the Administration Office and Transport Office amalgamated with the staff remaining, including the complainant, performing a wide range of old and new functions. It adds that as a result of this restructuring the position performed by the complainant was performed by another full-time employee who was redeployed from another area of the organisation and the need for the complainant ceased to exist. Mr. A attended at the Hearing and rejected the complainant’s assertion he advised her that her “job was safe”. He accepts that he did speak with the complainant at that time but states that he informed her there were no guarantees and that staff were to be retained on the basis of service. He added that at that time the complainant fully understood her contract would not be renewed the following April. He further stated that the complainant did not have her contract terminated at that time because she was pregnant and would be leaving in April, 2012.
5.3 The respondent states that it was always the case that the complainant’s employment would terminate on 22 April, 2012 when the fixed-term contract she was engaged on expired by effluxion of time. It accepts that it did not communicate this to the complainant before that date and that the first time the reasons for terminating her employment were set out was the HR Manager’s letter to the complainant’s solicitor dated 14 September, 2012. It adds that this failure was an administrative error and submits that this failure is not fatal as the complainant was aware of the action the company had to take previously to continue trading, that Mr. A had spoken with her in October, 2011 and she was aware her employment would cease in April, 2012 when her fixed-term contract expired. In conclusion it submits that there are factors unconnected with the complainant’s gender and/or family status and consequently, her complaint should fail.
6. CONCLUSIONS OF EQUALITY OFFICER
6.1 The issue for decision by me is whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts when it failed to renew her fixed-term contract when it expired in April, 2012. 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.
6.2 Section 85A of the Employment Equality Acts 1998 - 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
6.3 As Counsel quite correctly submits it is well established law[7] that the entire period of pregnancy and maternity leave is a “protected period” during which a pregnant employee cannot be dismissed save in exceptional circumstances unconnected with her pregnancy or maternity. It is common case that the complainant was (at the relevant time) employed on a fixed-term contact which had commenced on 22 July, 2011 and was due to expire on 22 April, 2012. This contract was the fourth in a series of such contracts which had commenced on 31 May, 2010. Counsel for the complainant again quite correctly submits that the ECJ (as it the was) ruled in Melgar v Ayuntamiento de los Barrios[8] that the prohibition against dismissal of a female employee during the “protected period”, in terms of Article 10 of the Pregnant Worker’s Directive[9], applies to employees engaged on fixed-term contracts. Consequently, on a first glance it would appear that the complainant must succeed in her case before the Tribunal. However, in that same judgement the Court went on to hold “It is clear that the non-renewal of a fixed-term contract, when it comes to the end of its stipulated term, cannot be regarded as a dismissal … contrary to Article 10 of Directive 92/85.”. It is common case that the complainant’s employment was terminated on 22 April, 2012 – the date her fourth fixed-term contract was due to expire. It follows therefore that the respondent has a full defence to the complainant’s allegations unless she can demonstrate that the decision was tainted by matters connected with her gender (pregnancy/maternity) and/or family status.
6.4 The complainant asserts that the respondent had formed the view that female employees (including her) could not be relied upon because they would become pregnant and cause considerable disruption to the respondent’s business operations and that this opinion influenced the respondent’s decision not to renew her contract. I cannot accept this proposition. The respondent was fully aware of her pregnancy when it re-engaged her in July, 2011. Moreover, it did not terminate her employment as part of the restructuring in October, 2011 – although it terminated the employment of three of her colleagues in the Administration Office who were in a similar position to her – engaged on fixed-term contracts. Had the respondent held the view the complainant asserts it could have terminated her employment on either of these occasions yet it did not do so. The complainant also states that her role was taken over by Mr. X when she went on maternity leave and continued in that role after her employment ceased, and contends that this is a further example on the respondent’s part to treat pregnant women less favourably. The respondent states that Mr. X was redeployed on foot of the restructuring process and that he was a permanent full-time employee with considerable service. The complainant accepts both of these points. I am satisfied that both of these issues are wholly unconnected with the complainant’s pregnancy, maternity leave or family status.
6.5 The complainant states that she believed she had an automatic right to have her contract extended for a further period in April, 2012 because nobody had told her otherwise, there were no issues with her performance and she was trained to work in several areas. Moreover, she states that Mr. A assured her (in October, 2011) that her job was safe. The respondent (Mr. A) rejects this and states that the complainant was fully on notice from October, 2011 that her employment would cease on the expiry of her contract in April, 2012. In circumstances where there is direct conflict between two people as to what occurred, an Equality Officer must decide, on balance of probabilities, which version of events is more credible. Having carefully considered the evidence adduced I am satisfied, on balance, that Mr. A spoke with the complainant in October, 2011. I am further satisfied, on balance, that Mr. A’s version of events is more credible. In reaching this conclusion I have had regard to the following facts – (i) at that time 170 employees were in the process of losing their jobs; (ii) several of these were in the area where the complainant worked, including some who were engaged on fixed-term contracts, (iii) the respondent knew that the complainant’s contract was due to expire the following April, (iv) the four contracts signed by the complainant all stated that the employment was temporary and (iv) Mr. A was tasked by Senior Management with conveying the “bad news” to employees and had no authority to depart from that. In light of my comments in this and the preceding paragraphs I am satisfied that the complainant’s employment came to an end as a result of the expiry of the fixed-term contract she was engaged on. I am further satisfied that the complainant has failed to establish facts from which it could be inferred that the respondent’s decision was connected to factors which were influenced in any way to the complainant’s gender (pregnancy and/or maternity). Moreover, I am satisfied that the complainant has failed to adduce any evidence that the aforementioned decision was influenced by her family status.
6.6 One final issue requires attention. Counsel for the complainant states that the respondent failed to furnish her with written notice of its intention to dismiss her during the “protected period” or the grounds of her dismissal. Counsel relies on Article 10 of the Pregnant Workers’ Directive[10] and cites the Labour Court decision in Assisco Assemby Ltd v Brenda Corcoran[11] in this regard. He submits that this failure on the part of the respondent is fatal to its defence. Counsel adds that the respondent had ample time to prepare and notify the complainant that her employment was terminated but she was unaware this was the situation until after she visited the respondent’s office on 5 June, 2012. The respondent accepts that it did not comply with the requirement to provide the complainant with written notice. However, the facts in the instant case can be distinguished from those in Assisco Assemby Ltd v Brenda Corcoran[12] . In that case the respondent made the decision to terminate the complainant’s employment for performance related issues, but was the Court could not determine whether or not this decision was made before or after it was advised of her pregnancy. The Court was also at a loss as to why the employer, having made the decision to dismiss her, did not follow it up, in particular it did not convey the outcome to the employee. In terms of the instant case I have already found (as detailed in the foregoing paragraphs) that the complainant was on notice that her employment would cease on the expiry of her fixed-term contract on 22 April, 2012. This was clear from the express written terms in the final contract and her discussion with Mr. A in October, 2011. Nonetheless, the respondent did not comply with the requirement to provide her with written notification. It states that this was an administrative oversight. This is in stark contrast to the prompt fashion with which it handled issues connected with the engagement/re-engagement of the complainant under the four fixed-term contacts from May, 2010 onward. However, I am satisfied, on the particular facts of this case, that this failure amounts to a technical breach of the requirement and is not, in and of itself, enough to negate the respondent’s defence.
7. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with (i) section 79(6) of the Employment Equality Acts, 1998-2015 and (ii) section 41(5) of the Workplace Relations Act, 2015
I issue the following decision. I find that –
(i) the complainant’s complaint that she was discriminated against by the respondent on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts in respect of access to employment was not referred to the Tribunal within the periods prescribed at section 77(5) of the Acts and this complaint is not properly before the Tribunal for investigation, and
(ii) the respondent did not dismiss the complainant in circumstances amounting to discrimination on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts.
_______________________________________
Vivian Jackson
Adjudication Officer/Equality Officer
3 March, 2016
Footnotes
[1] [2009] IEHC 370
[2] [2011] IEHC 303
[3] Dekker v Stichting Vormingcentrum voor Junge Volwassenen Case C-177/88
[4] Council Directive 92/85 EEC
[5] EED 033
[6] Case C-438/99
[7] See for example Danosa v LKB Lizings SIA CJEU Case C-232/09
[8] Case C-438/99
[9] Council Directive 92/85/EC
[10] Council Directive 92/85 EEC
[11] EED 033
[12] EED 033