UDD1819

The decision of the Adjudication Officer was dated 12^thDecember 2016 and was appealed on 5^thJanuary 2017. The Adjudication Officer decided that the Claimant had been unfairly dismissed and awarded the sum of €12,000 in compensation.

Preliminary matter.

The Respondent made an application at the outset of the hearing for an adjournment so that Ms W, the person identified by the Respondent as the decision maker in the matter, could be called to give evidence. The Claimant objected to that application.

The Court notes in particular that the Respondent had, in their submission, not identified Ms W as the decision maker involved in the decision to dismiss the Claimant. That submission had identified Ms G as the person who dismissed the Claimant. The Court also notes that the Appellant, having previously indicated an intention to call Ms W as a witness, had, in advance of the hearing, changed its mind in that regard. The Court also notes that the Appellant, on the day of the hearing, changed its mind again in this respect and decided to call Ms W as originally intended. It was this final reversal of decision which resulted in the absence of Ms W on the day of the hearing of the Court.

In all the circumstances, and noting in particular the opposition of the Claimant to the application, the application for an adjournment was denied.

Second preliminary matter

At the outset of the hearing the Respondent indicated its intention to make an application in the hearing that Ms G, the Respondent’s witness, would be treated as a hostile witness. The Court advised the Respondent that if such an application were to be made it should be made during or following the evidence of the witness for the Respondent, Ms G. In the event, no such application was made by the Respondent during the hearing of the Court.

Background

The Claimant was employed by the Respondent from 24^thNovember 2015 until the termination of her employment. The Claimant was advised by phone on 29^thDecember 2015 that she was being dismissed due to her unavailability to attend work. She subsequently received a P45 from the Appellant identifying the 18^thDecember 2015 as the date of cessation of employment.

The fact of dismissal is not in dispute.

Summary Position of the Appellant.

The Appellant submitted that the Claimant provided a medical certificate of unfitness for work from 17^thDecember 2015 to 28^thDecember 2015. That certificate did not specify the illness of the Claimant. She subsequently received a certificate from Dr. B stating that she was unavailable for work due to illness for one week from 22^ndDecember 2015. That certificate identified her illness as ‘post d/c miscarriage’. The certificate was left into the Appellant’s reception on the afternoon of 23^rdDecember 2015. The offices were closed from 24^thDecember 2015 to 28^thDecember 2015 inclusive. The certificate was not seen by the payroll department until 29^thDecember 2015.

A further medical certificate was received by the appellant on 29^thDcember 2015.

On that same date the Claimant telephoned the payroll administrator Ms G. At the time of that phone call Ms G had not seen the medical certificate which had been left in the reception area on 23^rdDecember. Ms G advised the Claimant that she was dismissing her due to her unavailability to attend work.

Ms G discovered, following her dismissal of the Claimant, that the Claimant had suffered a miscarriage. Ms G apologised and advised the Claimant that she could re-apply for her job as soon as she had returned to full health.

On 6^thJanuary 2016, the Appellant received a letter from the Claimant’s legal representatives claiming that the Claimant had been dismissed by reason of her pregnancy. By letter of 25^thJanuary 2016 the Appellant’s legal representatives advised the Claimant that they had been unaware of the Claimant’s pregnancy at the time of her dismissal. In that letter the Appellant advised the Claimant that she could return to work. That offer was repeated in a letter of 26^thFebruary 2016.

The Appellant submitted that it had not breached the Act at Section 6 as it was unaware, at the time of dismissal, of the Claimant’s pregnancy. She had been fairly dismissed by reason of her unavailability for work.

Evidence on behalf of the Appellant.

Testimony of Ms G.

Ms G worked in the payroll department of the Appellant at the material time.

Ms G said that she received a phone call from the Claimant on 17^thDecember 2015 at which point she was advised that the Claimant was in the accident and emergency department of a hospital. She was not made aware at that time that the Claimant was pregnant.

She said that, prior to her dismissal of the Claimant by phone on 29^thDecember 2015, she never saw the certificate identifying the Claimant’s illness as miscarriage.

On 29^thDecember 2015 Ms G received a message to return a call to the Claimant. At that point Ms G contacted Ms W prior to calling the Claimant. When she called Ms W, she was in conversation with another employee of the Appellant, Ms M. Both of those persons were discussing the pregnancy and miscarriage of the Claimant and were aware that illness associated with her pregnancy was the reason for the Claimant’s absence from work. Ms W told Ms G to dismiss the Claimant.

Ms G stated that she never dismissed any member of staff without instruction from Ms W. She stated that Ms W, prior to her instruction to dismiss the Claimant, was fully aware of the pregnancy and related illness of the Claimant.

Testimony of Ms H

Ms H stated that she was not in the employment of the Appellant at the material time. She stated that she had been recruited since that date and that she was familiar with the procedures in place for the tendering of medical certificates when an employee was sick. She stated that the process for tendering such certificates was set out clearly but not always followed by staff.

Summary position of the Claimant

The Claimant submitted that she became ill at work on 16^thDecember 2015 but completed her shift. Late that night she was removed by ambulance to hospital where she underwent tests until the afternoon of 17^thDecember 2015. She left a voice message for Ms G on 17^thDecember 2015 advising her of her ill health and also advising that she would be unable to attend work that afternoon.

She was advised by the hospital that she had an ectopic pregnancy and was sent home. She received a medical certificate certifying her as unfit for work for 10 days. That certificate was delivered to the Appellant on the afternoon of 17^thDecember 2015 and handed to the person behind the reception desk at approximately 3.00pm that day.

A further certificate was given to the Claimant’s partner on 18^thDecember by a local doctor who is also the Appellant’s company doctor. That certificate was delivered to the Appellant’s offices and handed to a person in reception on the 18^thDecember 2015.

A further medical certificate from Dr B was supplied to the Appellant on 21^stDecember 2015 which confirmed that the Claimant had had a miscarriage. That certificate was delivered to the Appellant’s offices on that day.

The Claimant called to the offices of the Appellant on 29^thDecember 20105 seeking a meeting with Ms G and to deliver a further medical certificate which she had received that day from the hospital. Ms G was unavailable but she left a message asking Ms G to call her.

Ms G subsequently called her by phone and advised her that she was “sick for too long” and that she was "being suspended” and that her P45 would be sent out to her. She received her P45 on 6^thJanuary 2016. That P45 identified her date of cessation of employment as 18^thDecember 2015.

The Claimant submitted that the Appellant was aware of her pregnancy at the time of dismissal and that the reason for her dismissal was her absence from work as a result of her pregnancy-related illness.

Testimony on behalf of the Claimant

Testimony of the Claimant

The Claimant stated that she was very protective of her job and that she had called Ms G on 17^thDecember at 12.30pm to advise of her pregnancy-related illness. She stated that her partner, in the succeeding period, handed in certificates as they were received from the hospital and her general practitioner, who was also the company doctor.

She stated that she called to see Ms G on 29^thDecember but Ms G was not available to see her at that time. Ms G rang her back that day. She stated that she related her circumstances to Ms G including the detail of her illness and her miscarriage.

She stated that Ms G told her that she was absent for too long and as a result she was now dismissed. She received her P45 on 6^thJanuary 2016.

Testimony of Mr M.

Mr M is and was the Claimant’s partner at the material time. He testified that he handed a certificate to a female employee of the Appellant at the reception area on 17^thDecember 2015. He stated that on 18^thDecember the Claimant’s General Practitioner, Dr B, gave her another certificate covering the period from 18^thto 21^stDecember 2015. He stated that on 18^thDecember he called to the premises of the Appellant and gave that certificate to another female employee of the Appellant in the reception area.

He stated that he returned again to Dr B, on 21^stDecember and received another certificate stating that the Claimant had had a miscarriage and certifying her as unable to work as a result from 22^ndDecember to 28^thDecember. He stated that he called to the premises of the Appellant that day and rang a bell to get attention. Another female employee responded and he gave her the medical certificate.

The Law

The Act at Section 6 in relevant part provides as follows

• 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

  (2) 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,…………
  ….(2A) Sections 3 and 4 of this Act do not apply to a case falling within paragraph ( f ), ( g ) F42 [ , ( h ) or ( i ) ] of subsection (2) of this section and, for the purposes of those paragraphs, ‘ employee ’ and ‘ adopting parent ’ include a person who would otherwise be excluded from this Act by paragraph ( a ), ( c ), ( f ) or ( g ) of section 2 (1) of this Act.

The Claimant in the within matter had less than twelve months’ service at the date of her dismissal but falls within the protection afforded by the Act at Section 6(2A).

Discussion and conclusions

The Respondent, in its submission, contended that it was unaware of the pregnancy of the Claimant at the point of dismissal and that the dismissal related to the Claimant’s unavailability to attend work.

However,the Court has heard evidence from the person who, on behalf of the Appellant, dismissed the Claimant on 29^thDecember 2015. That person has stated in evidence that the Appellant was aware at the point of the dismissal of the Claimant’s reasons for her unavailability to attend work, that it was the Claimant’s pregnancy and miscarriage which was the cause of her unavailability to attend work.

The Court has also heard evidence that medical certification was delivered to the Company offices on various occasions up to 21st December 2015. On the basis of the evidence tendered on behalf of the Claimant the Court is satisfied that a medical certificate was delivered to the Appellant on 21^stDecember 2015. It is common case that this certificate specified the miscarriage suffered by the Claimant as the reason for her unavailability to attend at work.

The Court finds that the Appellant, at the date of dismissal, was aware that the Claimant’s illness related to her pregnancy and miscarriage.

In all of the circumstances, the Court concludes that the operative reason for the dismissal of the Claimant was her absence through illness arising from her pregnancy and her miscarriage. The Court is satisfied, having regard to the Act at Section 6(2)(f), that the dismissal resulted wholly or mainly from the pregnancy of the Claimant and was, consequently, by operation of the Act, unfair.

The Court, having heard the submissions of the parties, concludes that compensation is the appropriate form of redress in this instance.

The Court notes that the Claimant has not secured employment in the period since her dismissal. The Court further notes that the Claimant was medically unfit to carry out her job at the Respondent employment from January to June of the year of her dismissal. The Court notes that the Claimant’s earnings at the date of her dismissal are agreed to have been €310 per week on average. Taking account of the lack of detailed evidence of the claimant’s efforts to secure employment and also the detail of her unavailability for work following her dismissal the Court measures the amount of compensation which is just and equitable in all the circumstances at €17,000.

Determination

The Court determines that the Claimant was unfairly dismissed and orders that the Appellant should pay the sum of €17,000 in compensation for the loss she suffered as a result of her dismissal. The decision of the Adjudication Officer is varied.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
5 April 2018______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.