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-00002825-001

23^rd February 2016

The Complainant was employed by the Respondent from 7^th November 2015 to 7^th February 2016 and her weekly rate of pay was €283.00c.

The Complainant was submitting that she had been unfairly dismissed by the Respondent for pregnancy related reasons and the Respondent was denying the complaint.

The Respondent was denying the complaint.

IBEC said the Complainant stated in her Complaint Form that she was dismissed as a result of pregnancy or related matters.   IBEC said at no point during her employment was the Respondent ever made aware that the Complainant was pregnant and that as such there could be no inferences drawn from the Complainant’s dismissal and her pregnancy as stated in the Complainant Form.

IBEC said that without prejudice to the foregoing, the Complainant failed her probationary performance review as a result on sporadic high absences and underperformance in relation to managing and handling of cash.   IBEC said that the Complainant’s contract of employment stated:

“If however management considers that you are unsuitable to the Company’s requirements and that your appointment will not be successful, your employment will be terminated during the course of, or at the end of your probationary period.”

IBEC said it was made clear to the Complainant that she was unsuitable to the Respondent’s requirements and that as such failed her probationary review.

IBEC said that on a couple of occasions the Complainant did not follow the correct procedures when dealing with customers, which resulted in a shortfall of money in the till amounting to €150.00c on one occasion and €44 on another occasion.     On both occasions, 3^rd and 10^th December 2015, the Complainant was formally met with and she was told that, should her performance not improve, she could fail her probationary period and her employment be terminated.   Her absence rate was also discussed as a cause for concern as it was above the acceptable level within the Company.   IBEC said the Complainant was absent for 2 days in November, 2 days in December and 3 days in January and the reason advanced by her for these absences was that she had the ‘flu.

In December 2015, the Complainant’s named Line Manager met with her to discuss these issues at her 4 week’s review.   She was informed that should her absence rate and performance not improve the Respondent would have no alternative but to terminate her employment.

IBEC said the   Complainant’s performance and absence did not improve and on 16^th January she was again met and she was again informed that her performance and absence rate were not satisfactory and that the Respondent had to give her the situation regarding her continued employment due consideration.   On 17^th January 2016, the Complainant informed that she was being dismissed from the employment as she had failed her probationary review – her final day of employment was 7^th February 2016.

IBEC said it is clear that the Complainant lack jurisdiction in taking her complaint under the 1977 Act - and furthermore the termination of her employment was a result of her not passing her probationary period.   IBEC said it is important to note that the Complainant confirms in her Complaint Form that she knew she was pregnant on 3^rd December; however in the meeting notes signed by her on 16^th January, she never mentions anything to do with pregnancy as a reason for her absence.

IBEC said that at no point did the Complainant inform the Respondent that she was pregnant and as such the termination of her employment was based purely on her failure to reach the required levels expected within the Respondent Company.

IBEC said that for all of the foregoing reasons it was clear that the complaint under the 1977 Act was not well founded and it should be rejected.

There were 4 members of management of the Respondent present at the Hearing, the Store Manager, the Deputy Manager, the Complainant Line Manager the Checkout Manager and the Team Leader and all 4 denied that they had ever been informed by the Complainant that she was pregnant or that they were aware of the fact that she was pregnant.

The Complainant’s Line Manager, the Checkout Manager gave direct evidence and denied the Complaint’s evidence and assertions in relation to her and in particular:

• She denied that the on the 3^rd December 2015 the Complainant told her that she pregnant and that she had congratulated the Complainant on her pregnancy.   She said that no such discussion took place.
• She denied that the Complainant handed her a document a few days later confirming her (the Complainant’s) pregnancy and/or that she asked the Complainant if she was okay doing the job she was one.   She said that no such discussion took place.
• She denied that in early January she told the Complainant that they were overstaffed and that thus they may have to terminate the Complainant’s employment, but that hopefully this won’t happen.   She said that no such discussion took place.

The Checkout Manager said that none of these discussions as described by the Complainant took place.

The Complainant had submitted that she was dismissed from her employment with the Respondent for pregnancy related reasons.

The Complainant said she was offered a job as Sales Assistant by the Respondent, she was not told that it was a Seasonal or Christmas job, it was a permanent part-time, 20 hours per week job.   She said that on Saturday 21^st November 2015, she had a ‘cold’ and was feeling unwell.   She said she informed the Checkout Manager by telephone she was not able to work.   She said that she went back to work on 22^nd November 2015, although she still felt bad she did want to miss work.

The Complainant said her cold got worse the next week and she had to take 3 more days off work (28^th to 30^th November).   She said she went back to work on 3^rd December 2015.     She said that she didn’t feel well and she was tired a lot, so she took a home pregnancy test on 1^st December and it was positive.   She went to her Doctor on Friday 4^th December and it was confirmed that she pregnant.

She said she spoke to the Checkout Manager on 3^rd December and told her that she was pregnant; the Complainant told the Manager that she had missed work twice and she would understand that the Manager was not happy and would understand if she was asked to leave.   The Manager responded that they needed staff for Christmas.   The Manager congratulated the Complainant on her pregnancy and asked if the Complainant was okay performing the job she was doing and asked her her ‘due date’.   She said a few days later she gave a Manager a document in relation to her pregnancy.   The Complainant said that when she told other staff one of them said she should not have told the managers.

The Complainant said that a few days after Christmas the Manager informed her that they were going to cut the Store opening hours, were overstaffed and that they may have to terminate her employment, but hopefully if would not happen and that she may be let go after her first review.   She said the Manager told her that her performance was good, despite her days of work sick.     The Complainant said that she was again sick with a cold and again felt tired and wasn’t bouncing back as per usual.   She asked her Doctor if it was normal to be so tired when pregnant and was told it was.

The Complainant said that the Checkout Manager gave her a second review a few weeks later, at which she said that the Complainant would be finishing up work with the Respondent from 7^th February (3 weeks time).   The Complainant was told that 5 persons would be cut from the workforce; but no one else was cut from checkouts.   The Manager told her that she had 5% to 7% sickness absence and the Company limit was 3%.   The Complainant said that she asked was it because of her pregnancy that she was being dismissed she was told it was not, that it was because of overstaffing.    She said that no mention was made of a limit for sick pregnant women.   She said she started work along with two other females and they were not dismissed.

The Complainant said that she feels that she was victimised in that she was the only person fired due to being ill while pregnant.

The Complainant said that her dismissal was unfair and in breach of the provisions of the Act.

In relation to the question of losses suffered by her the Complainant said that:

• She was intermittently sick throughout her pregnancy, about every two weeks she was unwell.   She agreed this meant she was unavailable for work during that period.
• She was on maternity leave from 30^th June to 30^th December
• After her baby was born she did not seek work

In relation to the question of redress the Complainant said that she does not want the job back, i.e. she was not seeking re-engagement or re-instatement and she further stated she was not seeking financial compensation.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

The Complainant was employed by the Respondent for a period of 3 months from 7^th November 2015 to 7^th February 2016.   Section 2 of the Unfair Dismissals Act 1977 provides that a person with less than one year’s service is not covered by the provisions of the 1977 Act.   However there are exceptions to this rule and the Complainant submitted that her dismissal was pregnancy related and thus falls within the exceptions contained in the Act.  

Accordingly the issue I am required to decide is only whether or not the Complainant was dismissed for pregnancy related and not any other reasons; i.e. even if the dismissal were unfair for other than pregnancy related reasons, I cannot, in accordance with the provisions of Section 2 of the 1977 Act, entertain the complaint.

I was presented with no credible evidence that the Complainant informed the Respondent of her pregnancy.   I do not find the Complainant’s evidence in relation to the notification of the Respondent that she was pregnant to be at all credible.   She provided no evidence of providing the Respondent with any notification of pregnancy documents as is to be expected where a female employee is pregnant. She confirms that she did not provide the Respondent with any medical certificates stating that she was pregnant.   She does state that on 3^rd December she told her Line Manager that she was pregnant, however the Line Manager strongly denies this and is supported in this by her fellow managers, who state that the practice in the employment is to record any such verbal notification, for obvious reasons, including the need to conduct a health and safety review.   I find the Respondent’s submissions in this respect to be more credible and accordingly I am accepting the Respondent’s evidence in this respect that they were not informed or aware of the Complainant’s pregnancy.

Accordingly I find that as the Respondent was not aware of the Complainant’s pregnancy and that accordingly it could not be a factor in her dismissal.

Accordingly I must find that the Complainant was not dismissed for pregnancy related and that equally accordingly that the Complainant was not unfairly dismissed as asserted by her.

Based on the above findings I declare that the Complainant was not unfairly dismissed for pregnancy related reasons by the Respondent.

I declare that the complaint under the Unfair Dismissals Act 1977 is not well founded; it is rejected and it is not upheld.