ADJ-00001953

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001953

Complaint for Resolution:

Date of Adjudication Hearing: 27/10/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

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

Background

The Complainant was employed by the Respondent from 1^st May 2015 until the employment was terminated without notice by the Respondent on 17^th August 2015. The Complainant was paid €10.00 an hour and her hours varied but on average she worked 22 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 17^th February 2016 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994 – that the Respondent had breached The Minimum Notice and Terms of Employment Act, 1973 and that she had been unfairly dismissed by the Respondent on the basis of her pregnancy.

Summary of Respondent’s Position.

Terms of Employment Information Act 1994. The Respondent confirmed that the Complainant was not provided with a written statement of her Terms and Conditions of Employment.

Minimum Notice and Terms of Employment Act, 1973. The Respondent confirmed that the Complainant  was not paid minimum notice on termination of her employment.

Unfair Dismissals Act, 1977. The Complainant commenced employment as a Waitress on a part-time basis on 1^st May 2015, along with another employee who was also recruited at the same time. Both were hired to cover the sick leave of another employee. The Respondent expected him to be absent for a few weeks.

The Complainant informed the Respondent in early July 2015 that she was pregnant. On 8^th July 2015 the Complainant was informed that her employment would be terminated as the employee was returning from long term sick leave. He returned to work on 20^th July 2015 working reduced hours. The Complainant was on annual leave the week of 13^th July 2015. On her return from annual leave she worked until 17^th August 2015 when she was informed that the Respondent no longer had work for her.

The Respondent denied that the termination had anything to do with the Complainant’s pregnancy. The Respondent wrote to the Complainant on 8^th July 2015 to inform her that her pregnancy did not have anything to do with her termination. The Respondent identified some female employees who had taken Maternity Leave and returned to work after this Leave which included extended Maternity Leave.

The Respondent stated the Complainant was employed for 3 months and must therefore satisfy Section 6 (2) (f) of the Legislation in relation to her claim. The Respondent referenced a number of decisions of the Employment Appeals Tribunal to support their contention that the burden of proof is on the Complainant to establish that she was dismissed because of her pregnancy.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994. The Complainant stated that she had not been provided with a written statement of her Terms and Conditions of Employment in breach of Section 3 of the Act.

Minimum Notice and Terms of Employment Act, 1973. The Complainant stated that she was not paid her entitlements under the Act on termination of her Employment.

Unfair Dismissals Act, 1977. The Complainant stated that she had been employed but was approached by the Manager of the Respondent to work as a Food Waitress and to be available for shifts at the Bar. She stated that she was not informed this was a temporary position and that she was replacing another employee on sick leave.

On 1^st of July 2015 she informed the named Owners that she was pregnant.

She received a phone call on 7^th July 2015 from a named Manager that she was being let go as the Respondent had no hours for her as another employee was returning from sick leave. She was due to commence annual leave and she was informed that on her return from leave she would be offered ½ days shifts.

There was an exchange of emails between the Complainant and a named Manager on 8^th July 2015 in relation to the termination of her employment after she had informed the Respondent she was pregnant. – Copies provided.

The Complainant stated that on her return from annual leave she was working between 15 and 25 hours a week.

On 17^th August 2015 she was informed to go to the Office where she met the named owners who informed her they had no further hours for her therefore her employment was being terminated.

The Complainant argued that – she was never informed her position was temporary and dependent on another employee returning from sick leave – she was informed she was to be dismissed 7 days after she informed the Respondent she was pregnant – a number of employees who commenced after her were retained – all employees were casual and why was she selected.

The Complainant stated she had not worked since her dismissal. She commenced her Maternity Leave in February 2016 and is now in receipt of One Parent Family Allowance from the Department of Social Protection.

Findings 

Preliminary Issue – Section 41 (6) of the Workplace Relations Act, 2015 provides as follows:

An adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates.

These complaints were lodged with the Workplace Relations Commission on 17^th February 2016. The Complainant’s employment was terminated by the Respondent on 17^TH August 2015.

However Section 1 (1) of the Unfair Dismissals Act, 1977 defines date of dismissal as (b) where prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973 the date on which such notice would have expired, if it had been given on the date of such termination….

The Complainant was in continuous employment for a period of 13 weeks and therefore under the Terms of Section 4 (2)(a) she was entitled to payment of one weeks’ notice on termination of her employment. Therefore for the purposes of these complaints the date of termination is 24^th August 2015.

Therefore I find the Complaints comply with Section 41 (6) of the Act.

Terms of Employment (Information) Act, 1994.

Both Parties confirmed that the Complainant had not been provided with a written statement of her Terms and Conditions of Employment. Section 3 (4) of the Act provides that an Employer must provide an employee with a written statement of her Terms and Conditions within two months of the commencement of the employment. I find the Respondent was in breach of Section 3(4) of the Act

Minimum Notice and Terms of Employment Act, 1973

Both Parties confirmed that the Complainant’s employment was terminated on 17^th August 2015, without the payment of Minimum Notice.

Section 4 (1) provides that where an employee has been in the continuous employment of the Employer for a period of 13 weeks the Employee is entitled to payment of one weeks minimum notice on termination of the employment. I find the Respondent is in breach of Section 4 (2) (a) of the Act.

Unfair Dismissals Act, 1977.

On the basis of the evidence from both Parties I find as follows:

Both Parties confirmed that the Complainant was already employed when she was approached by the Respondent and offered a position with them which she had accepted.

Both Parties confirmed that the Complainant was not informed that this was a temporary job and that she was replacing another employee who was on sick leave for a number of weeks.

Both Parties confirmed that the Complainant was not given a written statement of her Terms and Conditions of Employment.

Both Parties confirmed that the Complainant informed the Respondent that she was pregnant on 1^st July 2015.

Both Parties confirmed that the Complainant was informed on 7^th July 2015 that her employment was to be terminated.

Both Parties confirmed that her employment terminated on 17^th August 2015 without notice.

Directive 92/85/EEC – Council Directive on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.

Article 2 of this Directive provides as follows – For the purposes of this Directive (a) pregnant worker shall mean a pregnant worker who informs her employer of her condition…….

Article 10 of this Directive also provides as follows – 1.Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave…..save in exceptional cases not connected with their condition………….2. If a worker, within the meaning of Article 2, is dismissed during the period referred to at point 1, the employer must cite duly substantiated grounds for her dismissal in writing.

I note that the Complainant was informed verbally on 7^th July 2015 that she was to be dismissed. I note that at no time was the Complainant informed in writing by the Respondent the reasons for her dismissal with the exception of an email response to the Complainant dated 8^th July 2015 when she queried her dismissal

The Labour Court has addressed this issue on a number of occasions where they have 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”. Trailer Care Holdings Ltd v Healy EDA 8/2012. The Labour Court has also held in Lally v Rusek EDA 14/2013 that where an employee is dismissed during the period commencing with her pregnancy until the end of her maternity leave the employer bears the burden of proving “on cogent and credible evidence” that the dismissal was in no way connected to her pregnancy.

In this case the Respondent has argued that the Complainant was recruited to fill a temporary position, this was to cover another employee who was on sick leave for a few weeks. However the Complainant was not informed that she was to be employed only for a few weeks. She informed the Respondent she was pregnant on 1^st July 2015 and she was informed verbally on 7^th July 2015 that her employment was to be terminated.

I find that the Respondent has not satisfied the burden of proof to show as the Labour Court has held with “ cogent and credible evidence” that the dismissal of the Complainant was in no way connected to the fact that she was pregnant.

Decision 

Terms of Employment (Information) Act, 1994 CA-4933-001

In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare the Complaint is well founded. The Complainant was not issued with a written statement of her Terms and Conditions of Employment in breach of Section 3 of the Terms of Employment (Information) Act, 1994. I direct the Respondent to pay the Complainant compensation of €400.00 within 42 days of the date of this Decision.

Minimum Notice and Terms of Employment Act, 1973. CA-4933-002

In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this Complaint is well founded. The Respondent has breached Section 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973. The Complainant is entitled to payment of one week’s minimum notice on termination of her employment on 17^th August 2015. I direct the Respondent to pay the Complainant €220.00 within 42 days of the date of this Decision.

Unfair Dismissals Act, 1977. CA-2674-001

In accordance with Section 8 (1)(c ) of the Unfair Dismissals Act, 1977 I declare the complaint of unfair dismissal is well founded. I find that the Complainant was dismissed on the basis of her pregnancy. I direct the Respondent to pay the Complainant compensation of €5000.00 (five thousand euro) within 42 days of the date of this Decision.

Rosaleen Glackin

Adjudication Officer

Date: 2^nd February 2017