ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000810
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001184-001 |
30/11/2015 |
Date of Adjudication Hearing: 21/06/2016
At: Workplace Relations Commission, Haddington Road, Dublin 4
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, and 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 from 8th December 2014 until the employment was terminated on 27th October 2015. The Complainant was paid an annual salary of €27,500.00 and she worked 42 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment
The Complainant referred a complaint to the Workplace Relations Commission on 30th November 2015 alleging she had been unfairly dismissed by the Respondent on the basis that she was pregnant.
Summary of Respondent’s Position
The Complainant was employed as an Area Manager and commenced on 8th December 2014. In this role she had responsibility for 50 to 60 Cleaning Operatives. Her Contract of Employment provided for a probationary period of 6 months and could be extended further but was limited to a period of 11 months. The Complainant was provided with a Company vehicle and mobile phone.
The Complainant was issued with a letter dated 4th June 2015 extending her probationary period until 31st August 2015.
The Complainant was absent from work due to illness from 17th July 2015 until her return on 3rd August 2015. The Respondent was made aware during this time that the Complainant was pregnant. In fact a Director of the Company visited her when in Hospital.
After her return to work on 3rd August 2015 she requested annual leave for 3 weeks to commence on 3rd September 2015. She was informed that the Respondent did not give 3 weeks at a time and she took 2 weeks annual leave but did not return to work for a further week claiming she had been ill.
Her Probationary period was again extended by letter dated 19th August to 5th November 2015. The Respondent stated that a Named Director of the Company met with her at the time to explain that her probationary period was being extended because of work performance issues.
On 4th September 2015 a list of the Complainant’s shortcomings was drawn up. Included was a complaint from a client. She was given a copy of this list and complaint on her return from annual and sick leave on 24th September 2015. There were other complaints from clients after this list had been drawn up on 4th September 2015.
The Respondent met with the Complainant on 27th October 2015 and she was informed of the decision to dismiss her due to her ongoing poor performance. She was issued with a dismissal letter on the same date.
The Respondent stated that some 80% of the Respondent’s workforce was female and that pregnancy of staff is a common occurrence and does not influence the decisions of the Respondent.
The Complainant was dismissed solely because of her work performance.
Summary of Complainant’s Position
The Complainant commenced her employment as Area Manager on 8th December 2014. She was provided with a Contract of Employment which does provide for a probationary period of 6 months and in part states “completion of the probationary period will be followed by a formal appraisal review to discuss your performance to date”. The Complainant’s probation expired on 8th June 2015. The Complainant was not notified of any extension to her probation at that time and the Complainant did not have a performance review. No issues had been raised by the Respondent at this time.
On or about the 24th/25th July 2015 the Complainant was admitted to Hospital and it was at this time this she was informed she was pregnant. A named Director of the Company visited her in Hospital at this time. The Complainant informed the Director that she was pregnant.
The Complainant made a request for annual leave around 17th August 2015 for the period 3rd to 17th September 2015. This was authorised by the Respondent on 19th August 2015 for a period of 2 weeks. The very same date, 19th August 2015, the Complainant received a letter dated 19th August 2015 purporting to extend her probationary period to 5th November 2015 stating “due to your absence from workre sickness and your pending holiday”
She was also informed in the same letter that her “end of trial period appraisal meeting will be held on Thursday 5th November 2015 at 12 O’clock”. This was the first notification the Complainant had received that her 6 month probation had been extended.
In September 2015 the Complainant was presented with a document of alleged performance issues. No appraisal meeting ever took place on 5th November 2015 and the Complainant was not given an opportunity to address these alleged performance issues with her Employer. Rather the Complainant was summarily dismissed without notice by letter dated 27th October 2015. The Complainant received her P 45 with a cessation date of 15th October 2015.
The Complainant stated that she was dismissed on the basis of her gender and her pregnancy
Findings
On the basis of the evidence and written submissions from both Parties I find as follows:
- Section 6 (2) (f) provides as follows “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: (f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith”.
- The Complainant was issued with a Written Statement of her Terms and Conditions of Employment on 17th February 2015. This provides at Section 4 “Your employment will be probationaryfor the first six months the probationary period may be extended at the company’s discretion, but will not, in any case exceed eleven months. ….Completion of the probation period will be followed by a formal appraisal review to discuss your performance to date. Your employment will not be permanent until you have satisfactorily completed your probation and you have been notified in writing”.
- The Respondent stated that a letter dated 4th June 2015 was issued to the Complainant which states as follows: “Dear Named, Please note that your Trial Period has been extended until 31st August 2015. Kind Regards”. The Complainant stated that she had never received this letter extending her probationary period. The Respondent was asked why the probationary period was extended and why this was not stated in the letter. The Respondent was unable to provide any answer to this question and also to the question as to why the Complainant had not been invited to a meeting with the Respondent between the issuing of the letter on 4th June 2015 and the Complainant commencing certified sick leave on 17th July 2015 so as to appraise the Complainant of the issues that led to her probation period being extended. Fair procedures and natural justice would require that if a probation period is being extended that the employee would be informed of the reasons for the extension. This was not done by the Respondent.
- Both Parties confirmed that the Complainant was issued with a letter dated 19th August 2015 which states as follows: Please note that due to your absence from work re sickness and your pending holidayyour Trial Period has been extended until 5th November. Your end of trial appraisal meeting will be held on 5th November at 12 o’clock”. This letter makes no reference to the trial period being extended due to poor work performance but rather cites the trial period being extended due to sick leave which was due to illness related to the Complainant’s pregnancy. I further note that both Parties confirmed the Complainant returned to work from pregnancy related sick leave on 3rd August 2015 and she did not commence her annual leave until 3rd September 2015. Some 4 weeks later. The Respondent was unable to offer any explanation at the Hearing as to why a meeting could not have been held with the Complainant prior to her commencing her annual leave on 3rd September 2015.
- Both Parties confirmed that the Respondent had been informed that the Complainant was pregnant on 25th July 2015.
- I further note that on 4th September 2015, the day after the Complainant commenced her annual leave that the Respondent drew up a list of the Complainant’s “shortcomings”. This is clear evidence that the Respondent did not have any basis for allegedly extending the Complainants trial probation period when they allegedly issued a letter to the Complainant dated 4th June 2015. I further note that the list contains issues that are not dated as to when they occurred and are so general as not to enable the Complainant to be in any position to respond to them.
- Both Parties confirmed that there was no meeting held with the Complainant prior to her summary dismissal by letter dated 27th October 2015 which states that she has been dismissed with immediate effect. However I note from the evidence presented by the Complainant that the Complainant was issued with her P 45 which cites her termination date as 15th October 2015, some 12 days before she received her dismissal letter.
- I further note that all the emails citing complaints against the Complainant and provided to the Hearing by the Respondent are all dated in October 2015 – 14 in all with 2 from September 2015. There was no evidence presented at the Hearing in relation to any work performance issues between December 2014 and September 2015 up to the dismissal of the Complainant on 27th October 2015 although the P 45 states 15th October 2015.
- On the basis of my findings above the only conclusion I can come to is that the Complainant was dismissed on the basis of her pregnancy which the Respondent became aware of in July 2015. It is doubtful if the letter of 4th June 2015 ever issued to the Complainant and even if it did the letter dated 19th August 2015 clearly states that the trial period was being extended to 5th November due to Sick Leave. Sick Leave which was pregnancy related.
Decision:
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.
The Court of Justice of the European Union has held in Webb v EMO Air Cargo (UK) Ltd Case C-32/93, and in Brown v Rentokill Case C-394/96 that a woman has the full protection of community law for the duration of her pregnancy. This has been upheld by the Labour Court which has held that no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing.
On the basis of my Findings above I declare the complaint of unfair dismissal due to pregnancy is well founded. I direct the Respondent to pay the Complainant compensation of €40,000.00. This to be paid to the Complainant within 42 days of the date of this Decision.
Date: 1st September 2016