l

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002108

 22.03.17

Post hearing correspondence was received from the claimant’s representative on the 18th.Sept 2017.

Initially the claimant lodged complaints on the 24th.Feb.2016 under the Unfair Dismissals Acts 1977-2015, the Maternity Protection Act 1994, the Employment Equality Acts 1998, the Payment of Wages Act 1991, the Organisation of Working Time Act 1997 and the Terms of Employment (Information) Act 1994.

The first hearing was adjourned when the respondent submitted that the complaint under the Unfair Dismissals Acts was lodged before the termination of the claimant’s employment , the claims under the Unfair Dismissals Acts, the Maternity Protection Act 1994, the Payment of Wages Act 1991 and the claim for outstanding leave under the Organisation of Working Time Act 1997 were prelodged. The claimant’s maternity leave ended on the 27th.Feb.2016 after her complaints were lodged. The claimant’s representative confirmed that he would be lodging fresh complaints in order to ensure that the complaints were in time – the complaints were relodged with the Commission on the 21st.July 2016.

As consequence all of the complaints are duplicated and will be listed together as the respective decisions is recorded.

Final documentation regarding the Interview process was received from Peninsula on the 30th.November 2017.

Complaint(s):

Date of Adjudication Hearing: 22/03/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section and/or of the Payment of Wages Act 1991 and /or Section 30/31 of the Maternity Protection Act 1994 and/or Section 27 of the Organisation of Working Time Act 1997 and/or Section 7 of the Terms of Employment(Information)Act 1994following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Backdrop to the Complaints

The claimant was employed as banqueting manager with the respondent from October 2014 to a date disputed by the parties in the Spring of 2016.It was submitted by the respondent that the claimant expressed an interest in the position of Wedding Co-Ordinator with the respondent in August 2015 - the substantive post holder was on Maternity Leave at this time .The claimant commenced maternity leave on the 27th.August 2015.The respondent identified a need to reduce costs in Nov. 2015 owing to a   drop in sales and in January 2016 considered options for effecting employment costs- the respondent set out the proposed cutbacks in managerial staffing cuts. It was submitted that these were fixed costs to the company as they were permanent full time while many of the other positions were temporary with variable hours. The respondent set out a chronology of the meetings that took place with the claimant to discuss her potential redundancy. It was submitted that contrary to the claimant’s assertion that the claimant did not have a job to come back to on the expiry of her maternity leave on the 27th.Feb. 2016 , the decision to make her position redundant was not taken until the end of March 2016.

It was submitted that the claimant’s application for the position of Wedding Co-Ordinator was unsuccessful following an interview conducted by an independent third party on the 13th.Jan 2016.

It was submitted by the respondent that the claimant was placed on garden leave from the expiry of her maternity leave on the 27th.Feb. 2016 until her formal redundancy in April 2016.

It was submitted that at a meeting on the 23rd.March 2016 the claimant was offered operational roles within the company “ as there were no supervisor roles available at present” but she declined advising that she would not take a lesser position.

The respondent submitted that in “November 2015 , the respondent concluded that the company did not warrant the position of Banqueting Manager as the existing wedding team were competent to run the weddings with no loss of service to the wedding couple”s.This was a cost saving measure to the company.

It was submitted that a 3rd.consultative meeting took place with the claimant on the 31st.March 2016 where the claimant was requested to reconsider the offer of an operational role but she would not accept a lesser role or lesser pay.

The claimant’s representative submitted that the respondent was in breach of the Maternity Protection Act 1994 as she was dismissed while on maternity leave and not allowed return to work .In her complaint form received on the 21st.July 2016, the claimant additionally submitted that “ the employer says I was placed on Garden Leave .I did not consent to this”.

It was submitted on behalf of the claimant that the claimant was unfairly dismissed while on maternity leave .It was submitted that this was a specially protected period , that the employer says it is a redundancy but no procedures which should have been put in place were dealt with. It was submitted that “ the employee was called to meetings while she was on maternity leave to advise that her position has been made redundant .The employee had performed the position of wedding planner at times during her employment and despite this another individual was taken on .The employee is claiming it is not a valid redundancy” and that she appealed against the dismissal.

Terms of Employment (Information )Act 1994

Ref CA-00002883-002, CA-00006077-002,CA00006098-002,      

CA-00006101-002,

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Decision:

Section 41 of the Workplace Relations Act 2015 and/or Section 7 of theTerms of Employment(Information)Act 1994 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.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. I accept the respondent’s contention that the claimant was not prejudiced by virtue of the deficits in the contract documents furnished to the claimant and consequently while I acknowledge a technical breach on the part of the respondent , I don’t consider compensation appropriate in the circumstances. I believe this decision is consistent with the findings of the Labour Court in TED 161.

Payment of Wages Act 1991

RefCA-00002883-004,CA-00002883-012

CA-00006077-004,CA-00006077-012

CA-00006098-004, CA-00006098-012

CA-00006101-003,CA-00006101-011

Summary of Claimant’s Position

Summary of Respondent’s Position

Decision:

Section 41 of the Workplace Relations Act 2015 and/or of the Payment of Wages Act 1991 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.

I have reviewed the evidence presented at the hearing and noted the payslips submitted by the respondent. While the payslips are not explicit with respect to notice, I have concluded on the basis of the evidence presented that the claimant was paid her notice entitlement in April 2016 and consequently I do not uphold the complaint.

Organisation of Working Time Act 1997

RefCA-00002883-001,CA-00002883-004, CA-00002883-005, CA-00002883-006,

CA-00002883-008,CA-00002883-009,CA-00006077-001,CA-00006077-005

CA-00006077-006,CA-00006077-008 CA-00006077-009,CA-00006098-001

CA-00006098-005,CA-00006098-006 CA-00006098-007,CA-00006098-009

CA-00006101-001,CA-00006101-004 CA-00006101-005,CA-00006101-007

CA-00006101-008

Summary of Claimants Position

Summary of respondent’s Position

Decision:

Section 41 of the Workplace Relations Act 2015 and/or Section 27 of the Organisation of Working Time Act 1997 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.

I have reviewed the evidence presented at the hearing and noted the conflicting position of the parties. On the basis of the records furnished by the respondent I have concluded that the respondent met their obligations under the Act with respect to weekly working hours , annual leave and public holiday entitlements.

I acknowledge some merit in the arguments advanced with respect to rest breaks.However , I am obliged to consider the provisions of the Labour Court determination relied upon by the respondent and consequently find that the fact that the claimant was on maternity leave does not constitute reasonable cause for an extension of time and accordingly I am not upholding the complaints.

Maternity Protection Act 1994

RefCA-00002883-010, CA-00006077-010

CA-00006098-010,CA-00006101-009

Summary of Claimant’s Position

It was submitted that the respondent was in breach of the Act for failing to allow the claimant return to work on the expiry of her maternity leave.It was submitted that the claimant was compelled to take garden leave on the expiry of her maternity leave and this was imposed without the claimant’s consent.It was submitted that this was contrary to the provisions of the handbook which specified “In the event of circumstances prevailing , a period of ‘garden leave ‘ may be granted to ensure fairness to both employer and employee once either side has given notice of termination”.In the complaint received by the Commission on the 21st.July2016, the claimant elaborated that the respondent placed her on garden leave without her consent.

Summary of Respondent’s Position

The respondent refuted the allegation of any breach of the Act and asserted that the claimant lodged this complaint on the 24th.Feb. 2016 , prior to the expiry of her maternity leave on the 27th.Feb.2016.It was submitted that while on annual/compassionate leave, the claimant was effectively at work and on the payroll and accordingly the assertion that she was not allowed back to work was without foundation.

Decision:

Section 41 of the Workplace Relations Act 2015 and /or Section 30/31 of the Maternity Protection Act 1994 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.

I have reviewed the evidence presented at the hearing and noted the chronology of events arising following the commencement of the claimant’s maternity leave. The respondent has asserted that the claimant was placed on full pay / compassionate leave following the expiry of her maternity leave to facilitate negotiations on her future employment / redundancy.It has been accepted by the respondent that the claimant rejected an offer of alternative employment which involved demotion of the claimant to an operational role.I am satisfied that this offer did not constitute suitable alternative work as defined under Section 27 and accordingly I am upholding the complaint.I require the respondent to pay the claimant €10,384.61 compensation within 42 days of the date of this decision.

Unfair Dismissals Acts 1977-2015

Ref CA-00002882-011,CA-00006077-011, CA-00006098-011,CA-00006101-011

Summary of Claimant’s Position

It was submitted on behalf of the claimant that the claimant was unfairly dismissed while on maternity leave .It was submitted that this was a specially protected period , that the employer says it is a redundancy but no procedures which should have been put in place were dealt with. It was submitted that “ the employee was called to meetings while she was on maternity leave to advise that her position has been made redundant .The employee had performed the position of wedding planner at times during her employment and despite this another individual was taken on .The employee is claiming it is not a valid redundancy” and that she appealed against the dismissal”.

It was submitted that the claimant was called into a meeting while on maternity leave and was told she was being made redundant. It was advanced that no procedures were followed and the claimant was given no right of appeal. It was submitted that an inference can be drawn from the respondent’s failure to set out the grounds for redundancy/dismissal. It was submitted that the claimant was summoned to a meeting without being afforded the rights to representation.

It was submitted that the claimant was denied the right to representation at a meeting on the 13th.Jan 2015 concerning a potential conflict of interest. It was contended that the claimant’s position was not made redundant as the banqueting function was still being undertaken. It was submitted that the claimant was entitled to be back at work from the 18th.March 2016-11th.April 2016.It was submitted that the dismissal effectively occurred when the claimant was not allowed back to work and that the payslips submitted by the respondent backed this up.

Summary of Respondent’s Position

It was submitted that at the time the claimant lodged the initial complaint , the respondent was going through a redundancy process and that consequently the complaint was prelodged. It was submitted that the selection for redundancy process was fair, impartial and within the bounds of natural justice. It was argued that as the first complaint was lodged during the redundancy discussions , the claimant did not engage meaningfully during the redundancy process.

It was confirmed that the respondent had 32 Full Time staff and 75-80 Part Time Staff. As part of the restructuring process 2 staff had been made redundant , another had retired and another had opted for a 3 day working week. The manager confirmed the decline in wedding number from 84 – 72 towards the end of 2015 and set out the various cost saving measures that were introduced on the staffing side. He stated that the role of Banqueting Manager was absorbed into his own role. He asserted that he had invited the claimant to consider alternative positions but she declined to do so. He advanced that he put the claimant on compassionate leave during this period as it was the sensitive thing to do.

Decision:

Section 8 of the Unfair Dismissals Act 1977 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of that Act.

I have reviewed the evidence presented at the hearing and in particular the chronology of events leading up to the termination of the claimant’s employment.I have noted the claimant’s skill set and the comparable duties of the vacant Wedding Co-Ordinators post.I am not satisfied that the respondent presented compelling evidence to defend their decision to refrain from assigning the claimant to that vacancy all be it on a temporary basis .Furthermore I am not satisfied that the respondent presented any evidence of having utilised a transparent and fair matrix to identify the positions for redundancy and / or to explore alternative options to redundancy. Consequently, I have concluded that the claimant was unfairly selected for redundancy and accordingly I am upholding her complaint of unfair dismissal.I require the respondent to pay the claimant €15,000 compensation within 42 days of the date of this decision.

Employment Equality Act 1998

Ref CA-00002883-007, CA-00006077-007

CA-00006098-007, CA-00006101-006

Summary of Claimant’s Position

The claimant complained that she was discriminated against by reason of gender , family status, civil status and race when she competed for promotion to Wedding Co-Ordinator.

It was submitted that the claimant had her appraisal   with the Hotel Director and Sales and Marketing Manager in February 2015 and that the outcome was positive and complimentary. At the meeting the manager “ was advised that the employee was pregnant and will be going on maternity leave at the end of August 2015”.It was submitted that the claimant worked throughout her pregnancy , leaving work for one hour only on 2 occasions for medical appointments – it was advanced that she worked a 10-12 hour shift daily and was continuously on her feet.

The claimant had several discussions with the newly appointed General Manager about cover during her maternity leave but could not obtain clarity on the matter. A week before her departure , she was advised that the Operations Manager would be covering her duties – she specifically asked did that mean that she would have no job to come back to and was reassured by the GM that that would not be the case – she took it to mean that she would be coming back at the end of her maternity leave.

The claimant left for maternity on the 27th.Aug. and the baby was born on the 29th.Sept. – 9 days overdue. The claimant was due back on the 27th.Feb.2016.

The claimant was contacted on the 5th.January and invited to a review meeting on the 7th.January.The claimant was informed that owing to restructuring her position would be eliminated and she would not have a job to come back to.

She was informed that the Wedding Sales Co-Ordinator was off sick and they may be appointing someone on a temporary contract to replace her – the claimant intimated that she would be interested in that position and was called for interview on the 12th.January2016.The claimant felt that the interview was” effectively a meeting to find out what she did rather than to offer her the position as she had previously worked with the Wedding Co-Ordinator. She asked about the position and was told it was not yet finalised “.She was advised on the 19th.January that she was unsuccessful. An external candidate was selected. The claimant asserted that this process resulted in her being discriminated against on the grounds of gender, family status, civil status and race in her quest for promotion.

It was submitted that there was no job specification or job description for the position and no evidence of a marking sheet was presented . No application form was available.

Summary of Respondent’s Position

The respondent denied that the claimant had been in way discriminated against and it was contended that the claimant had failed to set out a prima facie case to show that the reasons for her not getting the role related to her gender , family status, civil status or race.It was submitted that it is only when the initial burden is discharged that the burden of proving that there was no infringement of practise of equal treatment passes to the respondent.It was submitted that the Labour Court had already determined that while    facts will vary from case to case , what is required is that they must be of sufficient significance to raise a presumption of discrimination. The provisions of Giblin v Bank of Ireland Asset Management Ltd (Dec E/2011/161 ) were invoked – it was contended that the claimant had failed to produce any evidence to support her allegations and in Giblin , the claimant had “ lacked any sound evidentiary basis and the tribunal found the complaint to be frivolous and vexatious and dismissed the claim.”

It was submitted that the claimant had failed to name a comparator.

It was submitted that a number of employees within the respondent company had left and returned from maternity leave   in the previous 18 months .It was emphasised that the Wedding Co-Ordinator position was “ a maternity leave position”.

It was submitted that the successful candidate was the same gender as the claimant and the respondent was unaware of her family status.

It was submitted that while the claimant had predominantly an operational role , the position of Wedding Co-Ordinator was primarily a sales role and the successful candidate had sales experience in her previous role with another hotel.

The records of the interview notes were submitted in evidence and further documents were furnished by the respondent post the hearing.- final documentation re the claimant’s job specification , the Specification for The Wedding Co-Ordinator position and the career background of the successful candidate was received by the WRC on the 30th.Nov. 2017.

Decision:

Section 77 of the Employment Equality Act 1998 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.

I have reviewed the evidence presented at the hearing and taken account of the documentation submitted post the hearing.

The claimant is alleging discrimination in her application for the Wedding Co-Ordinator post on 4 grounds – family status, civil status , gender and race.

Section 85a of the Act requires that claimants discharge a burden of proof in equality cases …..

“… where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”. As set out by the respondent in their invocation of Melbury v Valpetters (EDA 917), the Labour Court has already determined that mere speculation or assertions , unsupported by evidence , cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.The burden of establishing the primary facts is placed squarely on the complainant and the language of Section 85A admits no exceptions to this evidential rule.

The respondent asserted that they were unaware of the family status and or civil status of the successful candidate and the claimant’s representative submitted no evidence to demonstrate that the successful candidate was of a different family or civil status. No evidence was advanced to support the contention that the claimant was discriminated against on race grounds. In such circumstances I must conclude that the claimant has not discharged the burden of proof required to raise an inference of discrimination on any of these 3 grounds and accordingly I am not upholding the complaint of discrimination on the grounds of race , family or civil status.

I set out hereunder my consideration of complaint of discriminatory treatment on gender grounds.

The claimant was the same gender as the successful candidate.The claimant was pregnant when she applied for the position in August 2015 and was on maternity leave when she was interviewed for the post.

It was submitted by the respondent that they engaged a” third party consultant to interview candidates for the position of Wedding Co-ordinator “ with the hotel manager.

It was submitted that the successful candidate scored 26 points in the interview matrix and the claimant scored 18 points .The successful candidate was female aged between 20-30 years old. At the hearing , the respondent undertook to submit a copy of the successful candidates job application – ultimately , the respondent stated in their submission post hearing “ that the person that was successful in the application for the role of Wedding Co-Ordinator did not complete an application form” .Her details were retained following a failed application”. Said details were belatedly furnished to the Commission. I note that in the respondent’s own records of a meeting with the claimant on the 23rd.March 2016 , the Hotel Manager advised the claimant “ the job had been widely interviewed for and all had been given fair consideration”. In the event, it emerged at the hearing that only 2 candidates were interviewed for the position , the claimant and the successful candidate.

I note in the job profile submitted post hearing for Wedding Sales Manager/Co-Ordinator that” Managerial Experience in Hotel Banqueting and Sales is preferable for this position but not essential”. In the Hotel Manager’s reference for the claimant dated the 3rd.Feb. 2016, the following is stated “ Her duties include the following responsibilities which she carries out to a very high standard – she is responsible for co-ordinating the delivery of all food and beverage for functions held in the hotel and all details pertaining to functions being held in banquet and meeting rooms. She has responsibility for Staff rosters on a weekly basis and also for staff training for banqueting / functions. We find ….. to be a most reliable , honest , punctual and completely trustworthy employee .She undertakes every task with great enthusiasm and is keen to perform all aspects of her job to a high standard”.

In the claimant’s appraisal of April 2015 , the claimant was graded as “ giving an effective performance”.

I note from the interview notes submitted by the respondent that the claimant scored 0 points for Qualifications despite her having a Degree in Business Management. The successful candidate scored 3 points for qualifications described as “ customer facing roles- marketing degree”. I further note that the claimant received no points for the question “ What are the most important characteristics of a wedding co-ordinator “ while the successful candidate was awarded 3 points.I.t is unclear from the interview notes of both candidates precisely which questions were asked and answered .

I further note that the position was a short term locum position arising in the same department where the claimant worked and that the hotel was in the process of examining options for reducing staff costs.

I have considered the backdrop to the redundancies in the hotel and note in particular the notification of potential redundancy dated the 7th.January 2016 to the claimant. At this point in time , the hotel was proceeding with a competition for the filling of the temporary post of Wedding Co-Ordinator. The specifications submitted post hearing indicate significant similarities between the role of the claimant as Banqueting Manager and that of the temporary Wedding Co-Ordinator. The claimant had already submitted an expression of interest for this position on the 13th.August 2015 prior to commencing her maternity leave. No plausible explanation was furnished by the respondent for putting this post out to external competition in circumstances where compulsory redundancies were being contemplated. The claimant was on maternity leave when she competed for the position. The claimant first submitted her expression of interest in the Wedding Co-Ordinator position to the Hotel Manager on the 13th.August 2015- the claimant was pregnant and about to commence maternity leave .In her application the claimant asked the manager that in considering her candidacy for the position he “ consider a few points below in re-shaping the current position to suit me and my family as well as the hotel better”.

While taken individually , these matters may not be determinative , I find that taking the entirety of the foregoing into account I have concluded that the claimant has established a prima facie case of discrimination on the grounds of gender and I find that the respondent has failed to rebut it. Accordingly, I am upholding the complaint.

The provisions of Sections 6 and 18 of the Act provide that a pregnant employee can be compared to another woman where one is pregnant and  the other is not and it will constitute gender related discrimination .Section 6(2A) provides “ Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where , on a ground related to her pregnancy or maternity leave , a woman employee is treated , contrary to any statutory requirement , less favourably than another employee is , has been or would be treated”.

Furthermore , the case law of the European Court of Justice is quite clear.In Dekker v Stichting Vormingscrentrum voor Jong Volwassen , Case C-177/88, it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender.

In accordance with Section 82 of the Act, I require the respondent to pay the claimant €10,000 compensation for this act of discrimination within 42 days of the date of this decision. I further require the respondent to review their recruitment policies with a view to ensuring that they comply with the Act .

Dated:   19/04/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea