Complainant

Respondent

Anonymised Parties

A General Operative

A Company

Representatives

Self

Maria Kelly Law Library

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-00013045-001

09/08/2017

Preliminary Application.

The respondent is a producer of high quality yogurt products using milk from the owner’s own farm. The company was established in 2004 as a small specialist food producer and now supplies yogurt products to the Irish and overseas markets.   The company employed up to 41 staff when production was at its highest. There are currently 28 staff employed at the factory; the number of staff varies from time to time in response to the number of contracts and market demands.   The market for this type of high quality product is very competitive; maintaining high standards and controlling costs is essential to business success.

The complainant submitted a complaint to the Workplace Relations Commission on 9th August 2017 claiming relief for unfair dismissal. She was employed as a seasonal operative from 14th May 2016 to 2nd February 2017. Her work involved “capping” yogurt products by hand for the customer contracts in place at that time. About 70% of the complainant’s work time was spent capping products for one customer supermarket chain in the UK.   The complainant normally worked a 36-hour week and her rate of pay was €9.15 gross per hour.   Depending on production demands the complainant worked additional hours when required. Her working hours were reduced in January 2017, due to the reduction in production.   Her average working hours in January 2017 were 26 hours per week and the rate of pay was €9.25 per hour.

The complainant was issued with a written contract of employment.

The complainant was employed by the respondent for less than 52 weeks’.   A complainant is normally required to have 52 weeks’ continuous service with the employer before she can submit a claim of unfair dismissal. However, the complainant claims that she was dismissed for reasons connected with her pregnancy, which is denied by the respondent.

The respondent company suffered a major setback in early 2017 when, due to factors outside of its control, it lost the UK contract. This single contract accounted for approximately 43% of the business at that time. The loss of this contract forced the respondent to cut costs, automate some processes and restructure the business. Some employees had their employment terminated and the remainder had their hours of work reduced in line with the reduction in production.   The function of “capping” was automated resulting in a loss of posts. The complainant and three other employees were dismissed in January and February 2017 and their letters of termination stated the reason for dismissal was “automation and restructuring”. The complainant was not dismissed for any reason connected with her pregnancy.

The complainant finished working for the respondent on 2nd February 2017, as noted on her complaint form to the Workplace Relations Commission.   She submitted her claim on 9th August 2017 which is outside the six-month time limit for the submission of a complaint under the Unfair Dismissals Act.

The complainant was paid one weeks’ pay in lieu of notice.   Therefore, the latest date for the submission of a complaint was 8th August 2017. The complaint was received by the Workplace Relations Commission on 9th August 2017, as confirmed by letter of 15th August 2017 from the Workplace Relations Commission to the respondent.

The Workplace Relations Act, 2015, S41 (6) and (8) requires that:

"(6) Subject to subsection (8), 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 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause."

Where a complaint is received by the Workplace Relations Commission outside the six-month time limit the adjudication officer must consider the issue of “reasonable cause” before entertaining the complaint. The complainant is required to show reasonable cause as to why the complaint was submitted out of time. The complaint received by the respondent from the Workplace Relations Commission does not include any explanation as to why the complaint was submitted outside the six-month time limit. This matter was raised by the respondent in their statement to the Workplace Relations Commission, dated 30th August 2017. (Appendix 4). Without “reasonable cause” being shown it is submitted that this complaint should not be entertained by the adjudication officer.

The complainant was employed on a seasonal contract that commenced on 14th May 2016. In the summer season of 2016 the respondent was supplying products to a supermarket chain in the UK and this contract accounted for approximately 43% of the overall production of the factory. At the time the complainant commenced employment there were 30 employees, this number increased to 41 at the highest production point. The income generated by this contract was in the order of €146K in the month of May 2016, when the complainant commenced employment. Over the following five months the monthly income from this contract exceeded €200K per month. The UK contract came to an end in early 2017.   The loss of the UK contract resulted in such a substantial reduction in revenue that the respondent had to re-structure the business in order to survive. The re-structuring required a reduction in staff numbers, a reduction in working hours for permanent and temporary staff and the automation of some processes.   Four temporary seasonal employees, including the complainant, were terminated between late January and early February 2017. The “capping” of yogurt products by hand was automated when a new machine was acquired.

The complainant and the other three staff that were terminated at the same time each received a termination letter that stated that “due to automation and re-structuring we do not have enough work to continue with your employment”. The loss of the UK contract was the most significant factor in the reduction in production and revenue at the company. The termination of the complainant’s employment was not connected with her pregnancy but rather due to the loss of business and the automation of the capping process in which she had been engaged.

The complainant had no sick leave during the first 13 weeks of her employment.   She was absent on sick leave for 5 days from 15th to 19th August 2016 for a medical procedure unconnected with pregnancy.

The complainant went on sick leave from 24th to 28th October 2016 and was certified as suffering from “abdominal pain”.   She returned to work the following week but again went on certified sick leave from 4th to 14th November 2016 suffering with “abdominal pain”.  When she returned to work on 14th November 2016, after the second period of sick leave, she submitted a certificate from her doctor stating that she “is pregnant and as she is feeling tired and slightly unwell she would benefit from shorter shifts”.   This medical certificate, dated 11th November 2016, was the first notice the respondent received that the complainant was pregnant.

The complainant worked on five days between the date she notified the respondent of her pregnancy (14th November 2016) and Christmas. The days she worked were 14th November 5th, 15th, 20th and 22nd December 2016. During the rest of that period the complainant was on annual leave (11 days) or sick leave (5 days).

The complainant had no further sick leave between her return to work on 28th December 2016 and her last working day 2nd February 2017.

The Operations Manager and the complainant completed a risk assessment on 28th December 2016.   It is clear from the risk assessment document that the complainant was satisfied with light levels, working temperatures, noise levels, break and rest periods, and rest facilities. The complainant was supplied with personal protective clothing and a chair. The complainant was not required to carry heavy loads up and down stairs.

The respondent did not receive a request from the complainant’s aunt for a risk assessment to be carried out. The complainant’s aunt did contact the respondent to ask him to put the complainant on Health and Safety leave. The respondent spoke with the complainant about the request from her aunt and the complainant indicated that she did not require Health and Safety leave.

At the time that the four general operatives were dismissed the respondent company was experiencing severe problems. The loss of 43% of production left the respondent with no option but to cut costs which had an impact on all employees. The respondent had to take some very difficult decisions if the business was to survive. Regrettably, some employees lost their jobs and others suffered reductions in income due to shorter hours.   The respondent was not recruiting and did not advertise for staff at that time.

One employee who was dismissed in January 2017 was brought back in an emergency to deal with a short-term production increase. This was a temporary measure and the employee worked for 10 days in March 2017.

The complainant’s employment was terminated because the function of capping yogurt products by hand was automated and because there was an overall reduction in production at the factory due to the loss of the UK contract.

The complainant’s employment was terminated for valid business reasons.   Three other employees who had commenced employment around the same time as the complainant in 2016 had their employment terminated in January and February 2017 for the same valid business reasons. The automation of some processes resulted in the loss of posts and the overall reduction in production resulted in the loss of posts and reduced working hours for permanent employees. The complainant was not dismissed by reason of her pregnancy. The termination of employment arose in the context of dramatically changed business environment where 43% of the production had been lost.

Delay and Reasonable Cause:

The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5):

“Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”

The Labour Court stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford and excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.   The claimant’s failure to present the claim within the six-month time limit must have been to reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The complainant has not provided any reasonable cause to explain the delay and why such cause prevented the complaint being made within the six-month time limit. It is submitted that as the complainant has not shown any reasonable cause for the failure to present the complaint within time the adjudication officer must decline to entertain this complaint.

The respondent company suffered a huge loss of business in the early months of 2017. Actions had to be taken to ensure that the business survived. The actions included cutting costs, reductions in number of staff, reductions in working hours for the remaining staff and the automation of some processes. The respondent acted fairly and reasonably in taking these actions to re-structure the business. The complainant was not dismissed by reason of her pregnancy and her dismissal was not an unfair dismissal.

Preliminary Application.

The complainant commenced working with the respondent in May, 2017. She worked 5 days a week, 39 hours per week. She found out she was pregnant in September, 2017 when she was hospitalized for a few days. Her partner, who also works for the respondent told her manager that she was pregnant but asked him to keep it to himself for the moment, as there were complications and she was only a few weeks pregnant at that stage. Because she didn't want anyone to know she was pregnant during her first trimester, her first two medical certificates simply stated ‘abdominal pain’. It wasn't until her third medical certificate that it was made known that her complications were due to her pregnancy. Due to those complications, she told her manager in October that she would need shorter hours. Her requested was facilitated.

Her aunt, who is in HR, asked her if the respondent had done a pregnancy assessment. Her aunt called the respondent and ask them if they would carry out a pregnancy assessment. The respondent said that it would when the complainant returned to work. She also informed the respondent that the complainant could be put on health and safety leave if the relevant alterations could not be made to her employment conditions.

The complainant stated that normally she would have to stand all day while carrying out her contractual duties and that it was also very cold. On the 28th of December, 2017 her pregnancy assessment was completed. Her manager told her that she would have to get a ‘fit for work’ medical certificate from our GP. She got her certificate which stated she was fit and well and able to return to work with no alterations to our terms and conditions of employment.

On one occasion, she was asked to work in the cold store but when a third-party saw her there they told the manager that she shouldn't be working there as it was too cold. The complainant concedes that once her manager was aware that the conditions were too cold for her, she was removed from that room immediately.

Normally to get to her workstation she would have to crawl under the work table. However, she concedes that after she informed the respondent she was pregnant they allowed her to walk through a different area of the factory to get to her workstation so that she wouldn't have to stoop down.

On another occasion, she had to request a chair but concedes that as soon as the request was putting on was made available to her.

The complainant is of the view that the respondent’s attitude towards her changed when she told them she was pregnant. Both she and her partner were let go. She accepts that she didn't have the requisite service to be eligible for redundancy. She was informed by letter that her employment had been terminated. That letter did not have a right of appeal specified in it however the right of appeal process is set out in the employee handbook and the complainant confirmed that she was aware of it.

The delay in filing her claim with the WRC was due to the fact that she had a complicated pregnancy and birth. She was hospitalised after the birth of her child and thereafter was restricted from driving for 6 weeks. Her head wasn’t in the right place and she was trying to cope with having a new baby and all that comes with that.

The complainant in this case was employed by the respondent from the 20.05.2016 to the 02.02.2017. In order for me to establish jurisdiction to hear the complaint, in this alleged pregnancy related dismissals, the complainant must show that the dismissal was due to her pregnancy.

S 6. Unfair dismissal

(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,

Pedreschi v Lemons Beauty Shop UD591/1999 which held:

“The claimant must show the Tribunal that it has jurisdiction in the matter.   Where the claimant successfully shows the Tribunal that her dismissal was, on the balance of probabilities, on the grounds of her pregnancy, or matters relating thereto, the Tribunal will then assume jurisdiction in the matter. In arriving at the decision as to whether a dismissal was on grounds of pregnancy or matters related thereto, the Tribunal will have regard to the evidence of the employer, who will seek to show that the dismissal was justified on substantial grounds, not related to the pregnancy of the employee”

The dismissal of an employee by reason of her pregnancy, regardless of the duration of employment shall be deemed, for the purpose of the Act, to be an unfair dismissal. If, however the employer can show that the dismissal occurred for other substantial reasons, not related to the pregnancy of the employee, to justify the dismissal then it is not an unfair dismissal.

The respondent makes the case that due to the very serious loss of business and the consequent need to reduce costs constitute substantial grounds to justify the dismissal. Financial details submitted for the period 01 February 2016 to 31 January 2017 show that the loss of the UK contract equated to a production reduction of 43.7%. I am satisfied that the loss of the UK contract had a very serious negative effect on the respondent’s business and was the reason they made the decision to reduce their staffing levels. I am further satisfied based on both the respondent’s and the complainant’s evidence that there was no shift in attitude towards the complainant once her pregnancy was made known. The respondent did everything in itts power to facilitate the complainant and granted every one of her requests.

I find that the complainant was dismissed for financial reasons. The complainant has less than 52 weeks of service. I, therefore, do not have jurisdiction to hear the complaint.