Complainant

Respondent

Anonymised Parties

A General Operative

A Printing Company

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-00003960-001

20/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00003960-002

20/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00003960-003

20/04/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00003960-004

20/04/2016

The Complainant was employed as a General Operative with the Respondent from the 6th October 1993 to the 19th January 2016. She resigned her position on the 19th January 2016. She filed several complaints with the WRC on the 20th April 2016.

She alleges that she was constructively dismissed by the Respondent contrary to the terms of the Unfair Dismissals Act 1997.

She alleges that she was discriminated against on the grounds of gender and /or family status, contrary to the terms of the Employment Equality Act 1998 – 2015.

The complaints filed under Section 7 of the Terms of Employment (Information) Act 1994 and under Section 27 of the Organisation of Working Time Act 1997 were withdrawn by the Complainant.

6. The Complainant was employed by the Respondent from 1995 onwards. Prior to her pregnancy, the Complainant submits that she had never encountered any issue with her work performance nor was she the subject of any disciplinary action at work.

7. On the 17th October 2014, the Complainant wrote to Mr. M, the CEO of the Respondent. In this handwritten letter, the Complainant sets out as follows:

"As requested you will find enclosed a letter from my doctor stating that I am fit to resume my full-time position on Monday 03 November 2014. Also, I would like to take this opportunity to express my thoughts on your decision to change my days and hours. As a loyal and honest member of staff for the last twenty-one years. You decide to change the terms of my employment.

After all I've been through on my illness. This is the second time you have decided to change the terms of my employment. For the last fourteen and fifteen years, I have started work at 8:30 till 5 Monday to Thursday and 8 till 2 on a Friday. Because of my status as a mother, these are the hours that suit my childcare. I have no one available to care for my children after 2 on a Friday or all day Saturday. As you are well informed you are singling me out as no other member of staff hired after me had their employment changed.

All I ask is for you to treat me fairly, as I have treated you for the last twenty-one years.

I also requested on numerous occasions previously a weekly payslip with my wages.

In the new year if its ok with you I will try to make alternative arrangements with my childcare and associate matters.''

8. It is clear from the above that at this point in time the Complainant is expressing dissatisfaction with proposed new working hours.

9. That letter was replied to by letter of the same date. Remarkably that letter states:

"While I understand family commitments these are not for our concern. Our concern is the efficient managing of our business for all staff and will not be for the benefit of any one member."

10. The letter goes on to confirm that the Complainant's working hours will be unilaterally changed to: 9am to 5:30 Tuesday to Friday and 10am to 5pm on Saturday.   This represents a change from previous working hours (8:30am to 5pm Monday to Thursday and Sam to 2pm on a Friday). The letter also sets out in some detail the Respondent's position that the Complainant was somehow in breach of a policy on the submission of sick certificates. The Complainant is unaware of what policy the Respondent refers to as same does not exist. The Respondent also sets out that the Complainant would be redeployed and finally takes issue with the Complainant's position that she has been singled out, simply denying the Complainant's assertion and baldly stating that the Complainant's reasonable belief is "unacceptable". The Respondent does not make any effort to commence a grievance on behalf of the Complainant to assess whether the Complainant's assertion that she has been singled out is correct or not. Clearly given that the complaint made about her treatment relates to Mr M. Mr M is conflicted in assessing the validity of this assertion.

11.The Complainant replied to that letter on 20th October 2014. In that letter the Complainant stated that the change in hours is in breach of her contract. While the Complainant did not at that time possess a written contract of employment or statement of terms of employment, she respectfully submits that these times were or would have been implied to be contractually binding having worked these hours for in excess of 14 years.   In this correspondence, the Complainant confirms that she will return to work at 8:30am on the following Monday (i.e. not the Tuesday as per the Respondent's letter).

12.The Respondent replied to that letter on 22nd October 2014, and largely reiterates the position set out in its letter of 17th October 2014. This letter however somewhat disingenuously advises the Complainant that changing is a condition of her employment. In this regard the Complainant is not aware of any contractual term on which such an assertion might be based. As previously set out the Complainant was not given either a contract of employment or statement of terms of employment.     This correspondence threatens disciplinary action including the sanction of suspension on the Complainant in the event that she does not accept and comply with this unilateral change of her terms of employment. Bizarrely the Respondent also sets out that the Complainant should not raise her grievances in writing but should set these out orally at a meeting.   In the second last paragraph, the Respondent appears to make a threat to the Complainant's continued employment when he sinisterly outlines that “You will be aware of the number of people who perform the same work tasks as yourself and consequently it is possible that job losses will occur if we change the working situation".  

13.The Complainant replied to that letter in an undated letter. She states that all sick certificates were handed into the office. In the letter, she points out that she has never previously worked on Saturday and takes issue with the Respondent's assertion regarding restructuring and redeployment.   The Complainant takes issue with the Respondent's suggestion that she should work on Saturdays going forward, something she had never previously been required to do and explicitly states that she never received a copy of a Company handbook or a written contract. The Complainant explicitly requests a copy of the Company Grievance Procedure.

14.A meeting took place between the Complainant and EM on 30th October 2016. At this meeting the Complainant informed Mr M that she was returning to work under protest and that she was pregnant with a new child. Mr M suggested that it might not be safe for the Complainant to return to work until after that pregnancy referring to a previous miscarriage. The Complainant was surprised and distressed by Mr M position which she feels was entirely inappropriate and was in fact motivated by an attempt to penalise and victimise her.

15.Following that meeting, the Complainant wrote to the Respondent by letter dated 4th November 2014, stating that she will return to work as directed, but stresses that this is under protest. She repeats the difficulty that this poses for this childcare arrangements and requests that the Respondent carry out a Risk Assessment for Pregnant Employees.

16.Shortly afterwards the Complainant attended the Citizens Information Centre in Navan for assistance. On her behalf, Citizens Information sent a letter to the Respondent dated 22 December 2014 and in which Citizens Information requested a copy of the Complainant's contract, staff handbook and the maternity risk assessment as well as the clarification of various matters by the Respondent including the purpose of a meeting which took place on the 4th November 2014.

17. By letter dated 23rd December 2014, the Respondent wrote to the Complainant issuing her with a sanction of "Written Disciplinary Warning".   The Complainant was devastated by the receipt of this correspondence and denies the truth or validity of it. The Complainant denies saying 'fuck you' upon being told she would have to work on Christmas Eve. It should be noted that this sanction issued in the absence of any investigation or disciplinary hearing. It is also noted that same issued in the absence of any disciplinary procedure in circumstances where the Complainant was repeatedly requesting a copy of same and without providing the Complainant with any right of appeal. The Complainant respectfully submits that this was a further penalisation of her by the Respondent.

18.So upset was the Complainant by this development that she was unable to attend work due to stress and provided the Respondent with a sick certificate confirming same.

19.In response the Respondent wrote to the Complainant on 31 December 2014. In this letter the Respondent sets out its concern with the Complainant's absence record being a total of three absences between 04 November 2014 and the date of the letter. The letter suggests that the Complainant should visit with her doctor (which she clearly had already done) seemingly to establish her fitness to carry out her duties. It is respectfully submitted that the Respondent in these circumstances, if concerned with the Complainant's ability to safely carry out her role, should refer the Complainant to its own occupational health specialist. The Complainant submits that this is once again an attempt by the Respondent to intimidate her and to give her cause for concern for her future employment with the Respondent. The Complainant submits that she is not aware of any other employee who was ever required to do so.

20.The Complainant replied to the above letter by e-mail dated 01 January 2015 simply stating that she had been unable to attend work and that same was certified by her doctor. The following day the Respondent replied saying that she was required to furnish a back to work cert before returning to work. The Complainant submits that no other employee had ever been prevented from returning to work without the production of a certificate from her doctor. The Complainant submits that same was not motivated by any concern for her but was seen as a means to further penalise and intimidate her. The Complainant replied by email dated 05 January 2015 stating that she would attend with her doctor on the 06 January 2015 and would return to work thereafter. The Complainant also informed the Respondent of a pregnancy related check up on 08 January.   On 05 January 2015 EM wrote to Citizens Information informing them that the person dealing with the issues raised by them was on vacation and a reply would issue thereafter. Clearly Mr M was in fact the person dealing with these issues and as such the Complainant respectfully submits that this correspondence is incorrect. On the 12 January 2015 the Respondent emailed the Complainant saying that it would require confirmation her doctor that she attended the appointment. The Complainant submits that this is entirely inappropriate and is neither company policy nor is it something that had ever been required of any other employee.

21.By letter dated 27 January 2015, the Complainant informed the Respondent that her due date in respect of her pregnancy is the 21 April 2015 and that she intends to take maternity leave from 07 April2015 to 06 October 2015.

22.On the 17 February 2015 the Complainant replied to the email of 12 January, stating that as the Respondent is aware, all of her appointments are supported by either a scheduled clinic appointment or doctors request, which are visible to her at any time.

23.The Complainant was absent from work on the 14 February 2015. The Complainant submits that she attended with her doctor on 13 February 2015 and informed him of pregnancy related symptoms.   The Complainant submits that her doctor was satisfied that she was unfit to attend for work the following day being 14 February 2015 and provided her with a medical certificate confirming same. The Complainant on returning to work found that the work premises had been flooded. The Complainant, realising that the Respondent was in dire need of assistance, stayed on and assisted. The Complainant submits that she was acutely aware on her return to work that Mr M was agitated by the difficulties caused by the flooding and felt that raising the issue of her certificate would merely exacerbate his bad form and the already toxic relationship between them. The Complainant stayed at work for the day.

24.On 17 February 2015 John in the Respondent's Accounts Department wrote to the Complainant's doctor querying the Complainant’s medical certificate. The Complainant submits that at no time did she authorise her employer to engage directly with her doctor in this way. The Respondent writes in its email that the reason for the query is " ...required for wages purposes and to ascertain payment there".   The Complainant submits that this is disingenuous as the Respondent never paid her or anyone for sick leave and as such this enquiry could not have been motivated by a payment concern.     The Doctor's secretary replied on 17 February 2015 confirming that the Complainant had, as she set out to the Respondent, attended on 13 February 2015 and was certified as unfit to work on 14 February 2015.

25. On 23 February 2015 the Citizens Information wrote to the Respondent again on behalf of the Complainant. In that letter, it is pointed out that they have received no response from the Respondent to its letter of 22 December 2014. They note that the Pregnancy Risk Assessment states,   'employee has been asked to assist in the preparation of this assessment but has not engaged in this process'. This letter sets out in particular the Complainant’s position regarding her involvement in the process and in particular refutes that the Complainant had ever been asked to assist in the preparation of the assessment.     In fact, the Complainant submits that she was not even aware that the assessment was being done and she was not asked to participate in it in any way.

The letter also states that the Complainant is required to work within the shop without access to a seat. The letter concludes by repeating the request for the provision of procedures and informing the Respondent that the Complainant's return to work had been extremely stressful particularly given her pregnancy.

26.On 25 February 2015 the Complainant received three letters from the Respondent headed 'Invitation to attend a Meeting to Explain Your Actions'. These letters required the Complainant to attend meetings at 9:15am, 2:30pm and 4pm respectively. The letters in respect of the 9:15 and 4pm meetings appear to take issue with the Complainant engaging the services of the Citizens Information Centre to represent her stating for example that "You have given a third party (not associated with the company but who have written to us to be described as A to facilitate space) (sic) to understand that you have been requested to work in the shop area without access to a seal. This is untrue". And "You have given a third party (as at A above) to understand that you have to stand all day in the shop. This is untrue ". And finally, "You have in our opinion deliberately misled an outside agency (as at A above)". This letter goes on to state that this investigation meeting is some form of pre-investigation meeting and that the outcome of this meeting could result in an investigation which in tum could result in the Complainant's dismissal. Clearly this correspondence is an attempt to penalise the Complainant for raising valid concerns about her treatment at work. It is frankly outrageous for the Respondent to correspond with the Complainant in these terms particularly in circumstances where only days before it has been informed of the great stress being caused to the Complainant by the Respondent's actions towards her: "What has occurred since her return to work has been extremely stressful for [the complainant] particularly given that she is pregnant" (letter of 23 February from Citizens Information).

27.The Meeting at 2.30pm related to an allegation that the Complainant had in some way acted inappropriately by attending her medical practitioner and being certified as unfit to work on14 February 2015. The Complainant entirely refutes that she is open to criticism for the actions of her doctor and rejects the Respondent's allegation as unfair, discriminatory and intended to penalise her. The Complainant rejects the Respondent’s position regarding what occurred in respect of her attendance and same had, it seems, already been clarified by her doctor in her email of 17 February 2015.   The Respondent’s actions in initiating three separate disciplinary matters against the Complainant were unfair, unjust and discriminatory.     It is important to note that the Respondent had still failed to furnish the Complainant with a staff handbook, statement of terms of employment or grievance and I or disciplinary procedure at this stage.

28 By e-mail dated 02 March 2015, the Complainant indicated that as she was certified as unfit for work she would be unable to attend the aforementioned meetings. In particular, the Complainant stated that multiple meetings in a single day was not in the best interest of her health and wellbeing. That same day the Complainant attended at Citizens Information. The wrote a letter say that the Complainant would be unable to attend the meeting.

29 On 03 March 2015 the Complainant received correspondence from the Department of Social Welfare outlining that her request for maternity benefit could not be approved because her employer had failed to respond to requests made by the Department to them to confirm certain information about the Complainant. On 06 March 2015, the Complainant wrote to the Respondent attaching this letter.

30. The Complainant commenced her maternity leave on 07 April 2015.

31.On 22 July 2015 the Complainant wrote to the Respondent in relation to a grant application on behalf of her daughter Shannon who was to attend college that September. No reply was received from the Respondent. A further email was sent by the Complainant on 27 July 2015. An e-mail was also sent that day regarding the Complainant's Family Income Support (FIS). These e-mails also went unaddressed. The Complainant wrote again on 29 July 2015. In that e-mail the Complainant explains that the lack of response is causing her "unnecessary stress" given the urgent nature of the matter. Once again, the Complainant received no reply and so attended the Respondent’s office the following day and followed that up with another email on 30 July 2015. The Complainant was advised that Mr. EM was on holiday and would be returning in two weeks. A letter from Citizens Information in similar form was sent on the same date. The Complainant submits that Mr M was not in fact on holidays as had been asserted and says that he was using this matter to further penalise her and with a view to making her continued employment with the Respondent untenable.   In fact, the Complainant submits that she attended the shop the following day to collect the forms and Mr M was present in the shop and not on holiday as she had been led to believe. The account of what transpired is set out in the Complainant's e-mail 31 July 2016. Incredibly when Mr M did finally complete the Grant Application form on behalf of the Complainant in the part of the form entitled "Employee's Name" the Respondent has written that "Not Employee " and under "Confirmation of Current Annual Salary" the Respondent has written "Not Employed by us". At part F16 entitled "Confirmation of Current Annual Salary” the Respondent has written "NIA" and in the Document Schedule “Not Employed by us".   Such assertions were clearly untrue and could only have been intended to be vexatious and to cause the Complainant distress. Clearly the Complainant was in fact employed at that time and was on protective leave. The Respondent's actions in this     regard   were inappropriate, unfair and   discriminatory   and     were done   in circumstances where the Respondent was explicitly aware of the great stress its actions were causing to the Complainant On 31 July 2015 the Complainant wrote to the Respondent's Mr M outlining her concerns and querying these responses and clearly setting out a meeting with Mr M in which he appears to act in an obstructive and entirely inappropriate manner towards the Complainant.

32.On 03 September 2015, the Complainant e-mailed the Respondent to advise that she would be returning to work on 06 October 2015 following her maternity leave. In this correspondence, she notes that she assumes she would return to the hours worked immediately before commencing maternity leave.

33.That letter was met with a most bizarre response. By e-mail dated 07 September 2015 the Respondent took issue with the use of e-mail by the Complainant to correspond with them (in circumstances where both parties have always engaged by email as is demonstrated by the file) and it is asserted by Mr M that "our standard company practice it is required that you supply a paper letter to us properly signed and dated". This is of course in circumstances where the Respondent has at that point still not furnished the Complainant with a copy of the Staff handbook and in any case where the Complainant submits that no such procedure existed. The Complainant submits that this was simply another way of the Respondent discriminating against her and penalising her. The correspondence acknowledges on that occasion that the date was accepted. It also however stated that the Complainant would be obliged to attend a "disciplinary investigation hearing" upon her return to work and concluded by saying that another matter of "grave concern" would be notified to her in due course.   The Complainant says that this other matter was never notified to her and that the Respondent’s response to the Complainant's access request under the Data Protection Acts contained no evidence of another matter of grave concern.

34. Despite having accepted the Complainant's notification of intention to return to work, the Respondent wrote to the Complainant (by paper letter) on 16 September 2015 saying that she was in danger of being deemed to have resigned from the Respondent’s employment as she had not "now officially, informed the company of the date of your return to work by signed letter". This is in circumstances where the Complainant's prior email was explicitly accepted by the Respondent as the proper notification stating "we will on this occasion accept the date of the 6th". This letter continues to say that failure to inform the company of her return date will result in the company assuming she has terminated her employment. It also enclosed a further 'Invitation to Attend a Meeting to Explain Your Actions' letter. This letter appears to foresee a fourth disciplinary matter which would be discussed at 9.00am, and appears to be in addition to the three alleged outstanding matters and it seems that these matters were intended to be dealt with on the Complainant’s first day returning to work. The letter related to a wholly unwarranted and bizarre allegation of "demanding the completing of a Susi Form" by the company; and, again, for engaging with the Citizens Information Centre.

35.By letter dated 28 September 2015, the Respondent confirmed the Complainant’s return date as the 6th October 2015, but notes erroneously once again that the Respondent is awaiting an 'official' return to work letter. This letter also states that the Complainant is required to submit a final medical certificate confirming that she was in good health and fit to return to work. This occurred in circumstances where the Complainant attempted on several occasions to send the Respondent by paper letter notification of her intended return to work date. In fact, the Complainant refers to her attempt on 07 September 2015 to send same under cover of registered post.   The Complainant submits that this registered post was not accepted by the Respondent and returned to her as ''Attempted Delivery - return to sender” and the Complainant submits that the reason for the categorisation of the letter as return to sender was a refusal by the Respondent to sign for the letter

36.On 02 October 2015 the Complainant succumbed to the great stress placed upon her by her employer and was diagnosed as suffering from depression and certified as unfit for work.

37.By letter dated 05 October 2016, the Respondent acknowledged receipt of the Complainant’s medical certificate.   The Complainant submits that she intended to return to work as soon as possible however it became clear to her in discussing these matters with her doctor that a return to work would exacerbate her already fragile mental health and was not in her best interests. At this point the Respondent had still not provided the Complainant with a copy of the Company staff handbook as had been repeatedly requested by her.

38.It is submitted that when the Complainant finally received the Company Staff Handbook this document appears to be a combination of a safety statement and a staff handbook. The document takes the form of a safety statement from pages 1 to 41 however it appears to include a Disciplinary policy at page 42.   It is noteworthy that this policy suggests that disciplinary action should only occur in exceptional circumstances and that it should be taken in a fair and reasonable manner. It is respectfully submitted that subjecting the Complainant to four separate disciplinary matters on her return to work does not indicate a policy being exercised in exceptional circumstances. It is also noted that the procedure indicates that every effort should be made to resolve matters by way of the informal process prior to progressing to the formal procedure. The process thereafter highlights a four-stage process thereafter. The Complainant submits that while this document is purported to have been given to her on 06 January 1999 she refutes that this is the case and notes in fact that the purported signature or acknowledgement of her receipt on the 06 January 1999 describes her as [the complainant]. It is noted that the comment at the end of the Safety Statement indicates that the ''the above named have been given this document to read or “take home" and have signed the office copy on display" referring to a list of those who are purported to have signed the office copy including [the complainant]. The Complainant submits that on 06 January 1999 she was not married and therefore could not have been described by her married name [REDACTED] and therefore she vehemently refutes the integrity of this entire document. It is noted that a separate Discipline and Grievance procedure is purported to exist. This procedure appears to be incomplete. For the avoidance of any doubt the Complainant refutes ever being provided with a copy of this policy and is at a loss to understand why, if this policy did exist, it was never provided despite her numerous requests for same. Similarly, the Complainant denies ever being informed of or provided with a document entitled Bullying at Work and dated by hand 28/1112014. The Complainant submits that it is bizarre that such a document would have been created around the time that the Complainant was raising issues with the Respondent yet the Respondent never at any stage referred her to this or the Grievance procedure which was also purported to be in existence at that time.

69. The Company handbook at page 12 deals with health and safety at work and an additional item at page 12 which has been retrospectively added in handwriting purports to outline the Company procedure regarding sickness absence. There does not appear to be any mention here of an employee’s duty to inform the Respondent of their intended date of return to work in paper letter only.

40. On 18 January 2016, the Complainant wrote to the Respondent resigning her employment stating:

"Your conduct towards me since my maternity leave and recent absence from work on certified sick leave has been both unreasonable and unduly hostile and your conduct towards me generally over the last two years has been entirely inappropriate and an affront to my dignity at work.   Despite my repeated request, you have failed to furnish me with a copy of any terms and conditions of employment specific to my role and please note that I refute that I have been ever furnished with same. Your recent conduct in insisting that my medical certificates are furnished in "paper letter" format are not only bizarre but clearly intended to cause me further distress as is your refusal to accept registered correspondence from me with a view to complying to this unilaterally imposed requirement. Your conduct towards me has been so unreasonable as to constitute a breach of the necessary trust and confidence between me and my employer and is in breach of the implied terms of my employment with you. As such please note that I resign my position with immediate effect. Please send me on my P45 and outstanding entitlements including any accrued leave entitlements and outstanding pay by return."

41.By letter dated 29 January 2016 the Respondent replied and accepted the Complainant's resignation and forwarded to her her P45 and P60 on 26 February 2016. The Complainant was never paid her outstanding holiday or annual leave entitlements which had accrued over the course of her protective leave.

42. On the 20 April 2016 Cosgrave solicitors on behalf of the Respondent wrote to the Complainant’s legal representatives setting out their Client's position that the Complainant's actions in submitting her letter of resignation by email had defamed their client and that civil action would result. To the date of these submissions, no such action has been taken by the Respondent.

43.The Complainant was during 2014 certified as unfit to work because of depression. The Complainant was unfit for work for a period of months.   The Complainant submits that she was not at that time required to follow the procedure held out by Mr M in 2015 and in particular submits that at that time she was not required to submit her paper letter notification of her return to work. It should be noted that as a result of that absence, the Respondent was clearly on notice that the Complainant was someone who was at risk of a psychiatric injury. Despite this the Respondent throughout 2015 treated her in an inappropriate, hostile and degrading manner resulting in the exacerbation of the Complainant's fragile mental health.

Legal Basis for the Claim

44.The Complainant seeks redress under:

a.   Section 8 of the Unfair Dismissals Act 1977 ('UDA');

b.   Section 77 of the Employment Equality Act 1998 ('EEA');

(a) Constructive Unfair Dismissal

45.This is a claim for what is commonly known as constructive dismissal. The Complainant seeks compensation pursuant to s.7(1)(c) of the UDA.

46.As set out above the Complainant was left with no alternative but to resign her position as a result of the conduct of her employer which was so unreasonable as to leave her with no option but to resign her position. The Complainant also cites the Respondent's continual unilateral changes to her contractual entitlements as well as the erratic conduct of Respondent's Mr EM which was entirely inappropriate and which irreparably sundered the Complainant's   trust and confidence in her employer. It is noted that the Respondent has never complied with s.l4 of the UDA.

47.The Complainant has been unable to find alternative employment despite her best efforts since the date of her resignation. The Complainant seeks such compensation as is just and equitable, not exceeding two years' remuneration.

(b) Discrimination

48.The Complainant has been discriminated against contrary to s.6 of the EEA on the grounds of gender and/or family status.   In particular she was subjected to victimisation, as defined by s.74(2) and harassment as defined by s.14A of the EEA being "unwanted conduct relating to any of the discriminatory grounds" and same   must have the "purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 6(1) of the EEA provides that: "...discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds”

Burden of Proof

49.The Complainant relies on s.85A(1) of   the EEA which provides: "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."

50. In O'Higgins v UCD (2013) ELR 146, the Labour Court stated:

"Section 85A of the Act provides that where facts   are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the respondent. In A Worker v A Hotel {201 OJ E.L.R. 72 at page 81 this Court held as follows in relation to the application of this provision:

"The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board [2001] E.L.R. 201.That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there

was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facia case. Hence, it is not necessary to establish that the conclusion is discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. (see the determination of this Court in McCarthy v Cork City Council Labour Court Determination EDA0821, December 16, 2008) (emphasis added)

51 The rationale for this approach was explained by the Labour Court in Ntoko v Citibank [2004] ELR 116:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the Complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging Complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof”.

52 The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-020 asfollows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are (i) that s/he is covered by the relevant discriminatory grounds(s), (ii) that s/he has been subjected to specific treatment and (iii) that this treatment is less favourable than the treatment someone, who is not covered by the relevant discriminatory, has been or would be treated”.

53. The connection between the discriminatory ground, in this case gender and family status, and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination.

54. it has been established that re-assignment of roles can constitute direct discrimination (e.g. An Employee v A Broadcasting Company [2012] ELR 88).

55. It has been established that the treatment of a Complainant following her return or attempted return from sick leave may carry weight in the determination of whether a Complainant was directly discriminated against on the ground of disability. In A Worker (Mr O) v An Employer (No. 2) [2005] ELR 132 the Labour Court found that the Employer had failed to treat the Employee in a sympathetic manner upon his return to work from a psychiatric illness and was instead intent on making his working life difficult. On this basis, the Labour Court upheld the complainant’s claim for constructive dismissal, despite the Complainant never having raised the Respondent's grievance procedure.

56.It is submitted that there is clear evidence which amounts to a prima facie case of discrimination on the grounds of the Complainant's gender and family status and that, in those circumstances, the burden of proof must now shift to the Respondent to prove the contrary. It is further submitted that the Respondent conducted itself in a manner so as to make   the Complainant's return to work unviable thereby offending   against the Respondent's duty to reasonably accommodate her disability.

Pregnancy Discrimination

57. It is well established that discrimination based on pregnancy comes within the remit of gender based discrimination. This is expressly provided for in s.6(2A} of the EEA which 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 or would be treated."

58.This section was inserted into the EEA by the 2004 Act which placed on a statutory footing the decision of the ECJ in Dekker v Stichting Vormingscentru voor Jonge Volwassen (C-177/88) [1990) ECR 1-13941 where the ECJ stated:

"it should he observed that only women can he refused employment on grounds of pregnancy and such refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of maternity leave."

59. Importantly, Dekker confirms that discriminatory acts relating to pregnancy are directly discriminatory on the gender ground and that pregnancy cannot be compared to either sickness in a man or a non-pregnant woman. Indeed, the Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy, such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive, even though there is no male comparator. In Limerick City Council v Carro/lfZ009) ELR 257, the Labour Court stated:

"It has also been made clear by the Court of Justice that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender."

60. Section 26(1) of the Maternity Protection Act 1994 provides: "on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work ... in the job which the employee held immediately before the start of that period."

61.In their book Employment Equality Law (2012), the authors Bolger, Bruton and Kimber state:

"Any unfavourable treatment of an employee on grounds of their pregnancy will be unlawful direct discrimination. That protection extends to any unfavourable treatment that relates in any way to the pregnancy."

62. Repeatedly, the Equality Tribunal has found that any departure from the above entitlement constitutes direct discrimination of the woman concerned on the ground of gender. For example, in Grainne Campbell v Bank of Ireland Private Banking DEC

2013-046, the complainant alleged gender based discrimination because of her taking a period of maternity leave and, upon returning to work, discovering that she had been demoted. The Equality Officer noted the situation regarding a woman returning to work as set out above and held that any departure from same constituted direct discrimination on the gender ground.

63 .In O'Brien v Persian Properties Limited [2012] ELR 211 it was held that 'belligerent' responses from the employee in relation to working a four-day week amounted to

harassment under the EEA.

64. In the case at hand, the Complainant was entitled to and did avail of unpaid maternity leave and maternity related sick leave. The Complainant suffered severe discrimination on her return to work following maternity leave in the form of being treated less favourably as a result of having taken maternity leave and maternity related sick leave. It is respectfully submitted that the Respondent relied on the Complainant's maternity leave in criticising and treating the Complainant in an unfair, inappropriate and unsympathetic manner on her return to work and that same amounts to discrimination on the basis of her gender and family status.

Compensation

65. The Complainant seeks compensation for the effects of the acts of discrimination of the Respondent pursuant to s.82 of the EEA. For the avoidance of doubt, and in accordance with s.101(4A) of the EEA, that does not include a claim for discriminatory dismissal. In Ntoko v Citibank [2004] ELR 116 it was held that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. It is submitted that, in accordance with this principle the Tribunal should take into account the size and financial capabilities of the Respondent.

Additional Submission on behalf of the Complainant

Paragraph 48 to 65 of the initial submissions have already set out the legal basis for the equality claim. It is alleged that the Complainant was discriminated against on the ground of gender and/or family status. Those submissions set out in detail that any differential treatment on the grounds of pregnancy is discrimination on the gender ground. The Complainant repeats her reliance on s. 85A(1) of the EEA which provides: 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 can be seen on the Complain Form the following boxes are ticked:

a.       Victimisation;

b.       Conditions of Employment and

c.       Harassment

It is submitted that the Complainant was discriminated against in relation to those three aspects.

Victimisation

Victimisation is defined by s. 74(2) of the Employment Equality Acts in the following terms:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -

(a)    A complaint of discrimination made by the employee to the employer;

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment”

Harassment

Harassment is defined by s. 14A(7) of the Employment Equality Acts as being unwanted conduct relating to any of the discriminatory grounds” and same must have the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) provides: “…..such unwanted conduct may consist of acts, requests, spoken works, gestures or the production, display or circulation of written words, pictures or other material”.

Incidents of Discrimination

Paragraph 7 sets out that the Complainant returned from sick leave and upon her return the Respondent sought to unilaterally change her working hours and require her to work on Saturdays. It is submitted that in doing this the Respondent was aware of the reason why the Complainant was unable to work on Saturdays due to her family commitments. It is submitted that this is discrimination on the grounds of the Complainant’s family status. It is also submitted that this is discrimination on grounds of the Complainant’s gender. The Complainant is unaware of any other employee who was asked to change their terms of employment at that time. The presumption in s.85A(1) is relied upon in this respect due to the nature of the illness in question being pregnancy related.

Paragraph 12 set out the Respondent’s response to the above and clearly threatens her continued employment. It is submitted that this amounts to both victimisation and harassment. It is victimisation insofar as it is a form of adverse treatment following the Complainant raising the issue of discrimination (above). It is important to note that the act can constitute victimisation even in circumstance where the Respondent’s conduct is not discriminatory (although that is not accepted). It is harassment insofar as it constitutes unwanted conduct with the purpose or effect of violating the Complainant’s dignity at work and creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

Paragraph 14 sets out that the Respondent suggested that it might not be safe for the Complainant to return to work until after her pregnancy. It is submitted that this constitutes both victimisation and harassment for the same reason outlined in the preceding paragraph.

Paragraph 19 and 20 set out a letter written to the Complainant on 31 December 2014 and the requirement that she furnish a medical certificate before she return to work. No other employee had ever been prevented from returning to work without such certificate. It is submitted that this constitutes another example of victimisation and harassment. It is also another example of discrimination in relation to the terms and conditions of the Complainant’ employment as the Complainant is being treated differently from other employees.

Paragraph 25 sets out the Respondent’s completion of the Pregnancy Risk Assessment and it (falsely) stating that the Complainant was asked to assist by did not engage in the process. It is submitted that his amounts to victimisation contrary to the Employment Equality Acts.

Paragraph 26 sets out the Respondent’s reply to the Complainant engaging with Citizens Information to assist her with her work-related grievances. The Complainant received three letters on 25th February 2015 requesting her to attend various disciplinary meetings. It was submitted at the last hearing that these letters were entirely inappropriate and oppressive. Such oppressive tactics by the Respondent, it is submitted, amount to victimisation and harassment. It clearly amounts to adverse treatment following the Complainant’s raising of the complaint, and is unwanted conduct which violates the Complainant’s dignity and creates an intimidating, hostile, degrading, humiliating or offensive working environment. The Complainant is unaware of any other member of staff who receive this type of correspondence in her time in the Respondent’s employment.

The Respondent’s reaction to the Complainant attending her doctor on 14th February 2015 is clearly an attempt to penalize her for raising the complaint and as such amounts to victimisation. This is set out at paragraphs 23 and 27. The mere fact that the Respondent admitted to contacting the Complainant’s doctor under an assumed name to canvass information which was sensitive and which could not have been for the stated purpose is relied upon to support the contention that the Respondent’s conduct was entirely inappropriate.

Paragraph 29 sets out how the Complainant’s maternity benefit could not be approved because the Respondent failed to respond to request made by the Department.

Paragraph 31 details a similar incident in relation to the SUSI grant application where the Respondent failed to respond reasonably to the Complainant’s request regarding the completion of a standard form.   Such conduct on the part of the Respondent clearly amounts to victimisation as defined about and can only have been intended to make life difficult for the Complainant.

Paragraph 30 sets out the Respondent’s conduct in taking issue with the Complainant’s use of email when the Complainant informs him that she is returning to work following maternity leave. Given that email had been used previously, this is a most bizarre and irrational requirement of the Respondent. It is submitted that it amounts to victimisation.

Paragraph 30 also set out that the Respondent says the Complainant will need to attend a disciplinary meeting on her return to work in relation to a matter of grave concern”. At the hearing before the WRC in February, the Respondent was unable to tell the Adjudication Officer to what this related. The Complainant is also unaware as to what this might concern. Such a tactic can only have been designed and intended to intimidate the Complainant. It is submitted that this amounts to victimisation and harassment.

Paragraph 34 sets out that the Respondent did indicate that an email return-to-work notification would be accepted.   However, that is followed up with a letter saying that the Complainant was in danger of being deemed to have resigned for failing to send a signed handwritten letter. A second letter in this vein is set out at paragraph 35. The Respondent had explicitly waived this requirement and this can therefore only have been intended to further penalize the Complainant amounting to harassment and victimisation.

Without prejudice to the above, it is submitted that the cumulative effect of the above and each individual instance clearly constitutes discrimination in relation to the Complainant’s terms and conditions of employment as well as amounting to victimisation and harassment. The Complainant was entitled to and did avail of unpaid maternity leave and maternity related sick leave. The Complainant suffered severe gender/pregnancy discrimination.   It is respectively submitted that the Respondent relied on the Complainant’s maternity leave/pregnancy related illness in criticising and treating the Complainant in an unfair, inappropriate and unsympathetic manner on her return to work and that same amounts to discrimination on the basis of her gender and family status.

In Cityibank v. Ntoko EED045, it was held that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. It is submitted that, in accordance with this principle, the Adjudicator should take into account the conduct of the Respondent and the effects this had on the Complainant.

The Complainant seeks compensation for the effects of the acts of discrimination, victimisation and harassment by the Respondent pursuant to Employment Equality Act 1998 – 2008.

The Respondent submits that the Complainant was familiar with supplying return to work certificates and wishes to clarify that it is not pregnancy or post-natal depression but rather was sick leave on grounds of Depression as certified as Fit to Return to Work Certificate completed by her doctor.

The Complainant under cross examination on the 23rd February 2017 contradicted her own original submission (Paragraph 10 “The Complainant is unaware of what policy the Respondent refers to as same does not exist”) and acknowledged that she had received the Employee Handbook (which includes the various policies around sick certs) and Grievance Procedure and furthermore she had signed a receipt to confirm this. Her receipt of the handbook was also corroborated by Mr. RF among others at the last hearing.

Page 41 of the Employee Handbook stipulates the requirement for employees to provide a medical certificate and Page 50 of the handbook which deals with Sickness and stipulates that the employee must inform the company as soon as practical and PROVIDE the company, for inspection a Medical or Appropriate Certificate.

2 - Many Other employees had changed their working conditions because of the Complainant’s lengthy absence as the respondent was required to rationalize and re- organise. The Complainant did not work from May 2014 to October 2014 - a period of

7 months - during which time other staff were required to change their working arrangements to facilitate the working of the company.

The handbook at page 40 states that the company operate a 5 from 6 day operation and employees may be required to change their routine / hours / days. This forms part of the terms and conditions of employment for all employees and does not therefore amount to a unilateral change as claimed. There was no discrimination against the Complainant as the changed hours affected Mr. RF, Catriona, Mr. AM, Mr EM and others variously. All of these can provide evidence of this particular change in hours as well as previous changes in hours introduced over the years.

The Complainant was aware at the time of taking up employment that changes would and could be made and she accepted on the 23rd February that this situation pertained to her on other occasions. Indeed, in her own letter she refers to the fact that “this is the second time you have decided to change the terms of my employment”.

These variations in working arrangement will be shown by the company handbook. She would not have been aware of these changes prior to her return as she was not actually in work for the period. These changes were not made in response to her return to work in any attempt to treat her less favourably but in actual fact were made by the Respondent to deal with her absence from work and the system which was devised was subsequently maintained as all staff had adapted well to it. The Complainant was simply asked to adhere to the staff handbook in respect of the changed hours.

For the avoidance of doubt while the Complainant still insists that she did not have a Handbook or Grievance procedure - she also acknowledges that in fact she did have them and read them and so was fully aware of the procedures in handbook.

3 – The Respondent was not aware of any difficulties for her as her husband was not working at this time having been made redundant or working part time from home (being engaged in repairs of vehicles in a garage behind the family home). It is understood that Saturday was not his normal working day and furthermore the Complainant’s daughter was also available. The Complainant seems to indicate that her husband was not involved in this aspect of her/their family.

4 - Gender - The Respondent entirely refutes such a scurrilous allegation of gender discrimination. All of Respondent’s staff are treated equally and with courtesy at all times and they have members of staff with them for 27 years, 25, 20, 18, 6, 3 years variously which speaks for itself in regard to the conduct and environment in the company. Members of staff are available to give evidence in respect of the workplace environment and the change in hours and requirement for flexibility in accordance with the employee handbook with which they are familiar.

5 - The following staff were asked to change terms/working arrangements, etc: Mr. RF, Mr. AM, Ms. Catriona, Ms. DC and Mr. EM also did so. The Complainant was not working for almost 7 months and the Respondent did not know when she would return and so necessary changes occurred in work to ensure the company could effectively serve its customers and remain open. These variations in working arrangement will be shown in the appendix attached hereto.

6 - In regard to medical certs they are for varied illnesses and do not specifically note any Pregnancy issues or Post Natal Depression.

It should be noted that the Complainant contradicts herself in Par 2 of her letter in that she states “This is the second time you have decided to change the terms of my employment . . .” This shows that in fact she was aware of possible changes and in fact engaged in change previously and that her hand book contained at page 40 “operate a 5 from 6 day operation and employees may be required to change their routine / hours / days” (not unilaterally).

It is submitted that the Complainant has failed to establish a prima facia case or any facts from which it may be presumed that there has been discrimination as required by that Section of the Act which stipulates as follows:

85A (1) - 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 per the Handbook (which the Complainant claimed she never had, but then acknowledged she had) her hours could be changed. She explicitly (although perhaps unintentionally) acknowledged that she had changed her hours/conditions previously stating “this is the second time . . . .”

It was a matter for the Complainant to institute a grievance in accordance with the grievance procedure which she acknowledged she had received at the hearing on the 23rd February 2017. If she had an issue with Mr. M, she could have spoken to her supervisor, Mr. RF, or to Mr. AM who was next in management line.

The Complainant and other staff always submitted sick certificates in accordance with Company policy. The Complainant did not supply sick certificates for the period from the end of July 2014 and late part of October 2014 – The company allowed this absence of certificates to ‘slide’ given her medical condition.

It must be noted that she did submit a cert (written on 16 October 2014) as being certified as being fit to return to work following depression.

In respect of the Certificate of Return to Work, it is legally required that an employee returning to work supply a final certificate to Social Welfare, which is effectively a certificate signed by a doctor confirming that the person is fit for work. A similar final cert is necessary for the employer to ensure they have evidence of signing off sick and so by default the employee is fit for work and to ensure that an employer is not employing a person who is also signing sick OR is still sick. Heavy penalties exist for an employer in such a situation.

It is also an insurance requirement to ensure that no possible medical risk exists which might lead to a claim against the insurance. As employers are not medical doctors they must rely on the competence of a doctor to certify an employee as fit for work and so are entitled to a final fit for work cert.

The Complainant contends that this is Bizarre and so contends that the law of the land is bizarre.

The Complainant conveniently appears to have forgotten that all through her years of employment she (and others) did in fact supply paper medical certificates.

Medical Certificates from Other employees –   it is not true that she is the only one requested a medical cert from as all employees were required to submit them:

For confidential reasons the names are initials.

We shall be happy to supply the Chairman with fuller details if so requested provided data protection allows.

·         RF following 3 severe operations with possibility of infection and disability was requested to furnish various fit to return to work (Handbook p50 Sickness and P24)

·         SC suffering from a debilitating illness and on constant medication was also requested a fitness to return to work cert - p50 Sickness and P24

·         TC - debilitating illness on “drowsy” medication   - cert given.   p50 Sickness and P24

·         DC - Severe operation and on medication - cert required and given p50 Sickness and P24

·         DC - fracture and medication - cert required and given   p50 Sickness and P24

3 - No such discrimination exists now or in the past ever. It is custom and practice throughout industry and is the law of the land to require return to work certificates.

Handbook: page 41 Certificates / Par 2 - page 41 (and p50 Sickness) of the handbook provides that the employee will inform the company as soon as practical and PROVIDE the company, for inspection a Medical or Appropriate Certificate

The Respondent poses the question “is it bizarre that the Complainant should be asked to follow procedure laid down in her handbook which she finally admitted having been in possession of it all along?” The respondent was simply expressing surprise that she did not raise the grievance initially on an informal basis.

As already noted above, the change of hours is covered in the Handbook.

The reference to job losses refers to the time honoured and widely known and uniformly operated system of Last In = First Out and as the Complainant is well aware she was not last in.

The Complainant has taken the company’s reference out of context in that a junior member of staff could lose their job. We rely on our statement: The reference "You will be aware of the number of people who perform the same work tasks as yourself and consequently it is possible that job losses will occur if we change the working situation" is deliberately taken out of context by the Complainant to justify a claim against her employers.

The Complainant was not on Maternity leave – there are no medical certificates for maternity related illness. In fact, none of her certificates of this time mention maternity at all. It is respectfully submitted that the Complainant is deliberately and continually trying to include “maternity” issues well outside their relevant dates in an effort to bolster up an unfounded, vexatious and scurrilous claim.

The suggestion that the company would engage in conduct to violate the Complainant’s (or anyone else’s) dignity is utterly rejected.

The Complainant stated that she never received a copy of the company handbook or a written contract of employment. This is untrue, as she did receive both and she denied it until she was cross-examined in relation to this matter at the hearing.

In the company letter of 13th October and 17th October the Respondent advised The Complainant of her change of hours. This letter PRE-Dates the Complainant informing the company of her new pregnancy and so does not come under the Pregnancy claim by the Complainant as the company had no knowledge of her pregnancy at that time.

The Complainant made it very clear to members of staff that “her doctor advised her NOT to get pregnant again after her previous miscarriage” and she advised members of staff that in the event that she had another miscarriage she could haemorrhage OUT completely and die, such was her blood type and other issues. Being aware that she told Mr. EM the managing director that she had a “cancer” in her womb and suffered from polyps in the lining she would be prone to miscarriage and pregnancy was dangerous for her. (This is recalled as on the occasions she had to visit the Gynaecological departments of the HSE and so advised Mr. M of the reasons for her visits).

The above being in his/our knowledge and being very concerned for her safety and further bearing in mind what she had told members of staff, the Respondent suggested that for her own safety she should re-visit her doctor and provide the company, for inspection a Medical or Appropriate Certificate certifying her fit and safe to return to work as provided in her handbook.

Neither the company nor Mr. EM ever refused or denied the Complainant any opportunity to return to work but simply showed genuine concern not only for the Complainant but for the physical and psychological safety of the other staff who were extremely concerned for her safety.

NOTE: It should also be noted that the Complainant’s applications to prospective employers in 2016, some short time after her giving birth, she stated on more than one occasion “ I am available with immediate effect and am flexible with the days and hours assigned” And“I am available with immediate effect for flexible working hours on a temporary or permanent basis”

Yet, with a permanent job in the company and one small change in working hours so as to protect all employment she claims to have resigned on the basis of victimisation.

On returning to work in November 2014, the Complainant immediately wanted a risk assessment carried out. She refused to participate in the preparation of said report and instead when it was completed she did not discuss any of its contents with her employer, but immediately went to Citizens Information again, possibly with a view to claiming Health and Safety benefit.

She was asked to participate in the Risk assessment, as nothing had changed from her other pregnancies and that if she thought something was an issue, we needed to be made aware of it so investigations could be made.

The Complainant, while at a meeting with Mr. EM / Mr. AM and Mr. RF raised “pregnancy Risk Assessment”. She was invited to assist in the process, but refused and when asked a second time replied “no comment”.

The Complainant has deliberately taken the genuine concern and real spirit of concern of the letter out of context. And the concern of her co- workers out of context to suit her own ends.

The Complainant had by her own admission been suffering with the pregnancy and from a number of pregnancy related medical certificates in such a short 7 weeks, with 3 certificates such that the Respondent became concerned for her health given that she had made it widely known that she could severely haemorrhage etc.

The Complainant is also referred to the Respondent’s letter with knowledge of the Certificate from her doctor dated 30/10/14 which stated: “In view of her past history of (of pregnancy) . . . .”

She needed to be in clear good health so as not to pose a danger to herself or others and again the Respondent relies on page 41 handbook (and p50 Sickness) as being applicable more so at that time.

She had also sent in paper certs prior to this letter.

Concerning other employees, it is simply not true that she is the only one requested to furnish a medical cert:

•    RF following 3 severe operations with possibility of infection and disability was requested to furnish various fit to return to work (Handbook p50 Sickness and P24)

•    SC suffering from a debilitating illness and on constant medication was also requested a fitness to return to work cert   - p50 Sickness and P24

•    TC - debilitating illness on drowsy medication - cert given.   p50

      Sickness and P24

•    DC - Severe operation and on medication - cert required and given p50 Sickness and P24

•    DC - fracture and medication - cert required and given   p50

      Sickness and P24

The company maintains, as per previous statements, that in its concern for the welfare of all of its staff and given the panic that the Complainant instilled in her colleagues and in its managers, it was within its rights to seek a return to work certificate. It is the law and it is also contained in her handbook on page 50 (sickness). It is now and was then company practice and custom to supply a paper certificate. To re-enforce this the Respondent will rely on previous paper certificates already submitted. The Complainant is entirely inaccurate in her recollection and compounds untruths throughout her submission.

Mr. M did not write to Citizens Advice on 5th January, 2015 because at the time he was on his winter vacation in the Canary Islands. This reply came from the public e-mail address to which the Complainant sent the unnecessary and deliberately contrived copy of her resignation. We respectfully submit that this was returned to Citizens Advice in good faith by a member of staff to alert them to Mr M absence. This mail is used by 5 to 6 members of staff.

As noted previously, paper Certificates is widespread custom and practice.

The Complainant visited the doctor at 8.30 on the morning of the 13th February and withheld a certificate of illness from the company and only submitted it on the 17th following. She admitted that she told an untruth about her visit to the doctor on the Saturday 14th and further that she made it known to the other members of staff that she had told an untruth to the manager and so she felt that she was in trouble for telling untruths.

The Complainant makes the claim of an existing toxic relationship existing yet during this time she was continually given advances of money from the Respondent from his own pocket to assist her in buying food and other items for her family pre- wages day (Friday). This toxic claim will be rebutted by staff witnesses if necessary.

Evidence of Mr. M’s good state of mind and proper demeanour was already given by witnesses as being stable and business-like in the face of yet another flooding.

The Complainant withheld vital medical information from her employer contrary to par 2 page 41 of her handbook (and p50 Sickness of her hand book).

She remained working in an unsuitable environment after being told to go home for safety reasons by her immediate supervisor, Mr. RF and then by Mr. AM the next in line, and by other members of staff and she knowing that she would have a Pregnancy Issue the next day.

The Respondent admits that the doctors were contacted under a regularly used Code name of “John” for the following reasons:

John is the code used to follow up accounts queries so that a request can be directed to any one of 3 people in the accounts office. SC / AM/ EM

As the Respondent is the Account Executive of the Medical Practice it was important to distance himself from direct name contact with a person who would be placing orders with the company through him.

On the response of the doctors to the request the Complainant was actually given a gratuity for her time sick and further was paid for the week that followed.

The Complainant left work at 6 pm on Friday 13th February, 2015 with her full pay and with a Sick Certificate which she knew was for the following working day.

She did not alert the Respondent nor her immediate supervisor, nor the next supervisor in line nor any other member of staff that she would not be in the following rostered working day.

She did not alert her immediate supervisor, nor the Respondent nor any other member of staff that cover would be required for the following day - Saturday 14th, there being only 2 staff rostered for that day – she being one – and she knowing that she would not be in.

It was only by “James” telephoning Mr. RF, her supervisor, early on the morning of Saturday 14th February that Mr. RF was able to alert the Respondent (Mr. EM) to the fact that The Complainant would not be in and by consequence there would be short staff. She knew Mr. RF would not be working on that Saturday.

She had the Respondent, Mr. EM’s mobile number as do all staff and did not attempt to contact him. Rather, with scant regard to her employer and her colleagues she told a series of untruths, and engaged “James” in further exacerbating the untruth and left her colleagues and her employer under stress and further left them anxious and in panic as to her health and welfare over that weekend such was the news she/James gave them of urgent impending pregnancy issues she having previously told her colleagues of haemorrhage possibilities and her previous miscarriage.

Her deliberate untruths left all very worried on the Saturday, Sunday and Monday.

It was necessary for the Respondent – Mr. EM - to abandon his plans for that day in order to take the place of the Complainant who could quite easily have informed someone anytime on the Friday of her not being in to work on the following day.

For the avoidance of doubt the Complainant and all staff are obliged to inform the company of them not being available to attend work. Handbook P41 Par 2 states - as soon as practical - practical was the day she received the cert. (we rely on the specific of page 41 handbook (and p50 Sickness).

In so far as the respondent asked the question it was in fact the doctors who volunteered the reply. The Respondent rejects any inference of breaching data protection as it was the doctors who held the information and volunteered it.

The Adjudicator asked the Respondent to present evidence of the reason for his e- mail to the doctors, the Respondent claiming that it was for Salary purposes.

The Respondent presents the following evidence which is displayed in the ledger PAYE sheet given under data protection to the Complainant where in it states that the Complainant was paid salary for 13 February 2015 in the full pre-tax value of €414.90.

It should be noted that the Complainant was paid for time she was not at work during these weeks. It should also be noted that in a time when she claims there was a “toxic” relationship she was paid more than what she earned and further previously on 8 November 2014 she was paid a gratuity for a Saturday which she did not work - she rang in sick.

She also told an untruth about visiting the doctor on Saturday, 14th February and there are 2 witnesses as to the telephone calls and their content she was responsible for organizing through James to give credence to an untruth about Saturday and further acknowledged that an untruth on the 17th following.

Further, the doctors, by their reply acknowledged that she did not visit with them on the Saturday.

The Complainant was asked sometime near to 27/11/2014, in the company of RF and AM and EM to take part in Pregnancy Risk Assessment after requesting one and she refused to take part in it. She was further asked one more time to assist in the Assessment and refused. She was told that the Assessment would be carried out and she would be given a copy of it and she could comment on it - her reply was “no comment” which the Respondent found to be a bizarre response.

Under Par 2 / page 5 of her handbook the employee is reminded of their duty to the employer of their obligation to co-operate with the employer to enable compliance with relevant statutory provisions.

The Complainant was asked on more than one occasion to assist in the Risk Assessment. Having been in possession of her handbook and other procedures, the Complainant did not bring any issues to the attention of the Respondent under those sections of her Handbook - Page 27 (S10) wherein it states : 1 - it shall be the duty of every worker to report defects . . . . endanger the safety, health and welfare of himself or fellow workers. And under Par 2 / page 5 of her hand book the employee’s duty to co-operate.

The Complainant’s allegations are totally untrue and witnesses can confirm her being asked to assist with the risk assessment and her answer which was “no, no comment”. For her to subsequently claim that the Respondent was guilty of victimisation is preposterous insofar as she did in fact refuse to engage in the process.

The respondent will also bring forward a survey of 27/11/2014 signed by the Complainant in which she confirms her training and knowledge of all the machines and operations she does and in this survey does not take the opportunity of making a complaint except that the laminating machine and gluing machines   - after 10 years use by her - is making her sick. She was ordered not to use either of these machines yet she continued to use them. She was further told not to use them and she further used them on more than 3 more occasions against the strict instructions of the managing director. It should be noted that the materials used in the laminating machines is certified food fit by the FDA / USA and not harmful to life. The Complainant claims that the big laminating machine causes her illness but the smaller shop machine does not cause any concern for her. For the avoidance of any doubt the materials used in both machines is exactly the same product and certified FDA / USA Cert.

In a letter of 22 December 2014 from the Complainant through Citizens Advice the Complainant says that she requested a risk assessment but fails to inform Citizens Advice that she was asked to take part in one. Evidence will be adduced from her own chosen witness that she was asked to take part and refused.

We also refer back to the Survey she signed on 27th November 2014 and its content where she confirms the machines she has used for over 10 years and her training received.

We also refer to the Complainants letter through Citizens Advice of 23rd February 2015 in which she complains of the gluing machine and the laminating machine.

We refer back to the Survey of 27th November 2014 where she confirms she is trained and uses these machines for years. We refer back to at least 4 instructions to desist in working these machines on dates between November 2014 and   January 2015

We submit that the Complainant was trying to create a paper trail of imaginary abuse by the company to bolster up a claim for compensation.

The letter from Citizens Information also mentions that the “Complainant is required to work within the shop without access to a seat.”

The Tribunal heard that she did not have a seat. The Respondent produced dated photo evidence that the Complainant not only had a seat but chose that seat herself. That seat she had on the 21 February 2015.

The Complainant made a complaint to the Citizens Advice on 23 February 2015 that she had no seat and was required to work all day without a seat – i.e. standing.

The Complainant during the first sitting of the Tribunal while eventually admitting that she had a seat she tried to claim it was not a suitable seat.

The Complainant claims that the seat was not a suitable chair, yet she picked it herself. The Respondent will show by additional photographic evidence that in fact the Complainant deliberately chose an unsuitable chair in preference to 2 other very suitable chairs in the same location in order to bolster up a claim of victimization and mal treatment – which is refuted by the Respondent.

She displayed to the Tribunal at its first hearing that she had the exact knowledge to pick a suitable chair yet with that knowledge she deliberately chose what she described as an unsuitable chair and having personally chosen a chair and used it she proceeded to advise Citizens Information that she had no chair whatsoever and had in fact to stand all day.

The Complainant received 3 invitation letters on the 25th February 2015. The following day 26th February she presented to her doctor and received a certificate for work related stress covering a period from 2 days prior to the certificate until 3rd March 2015.

The Complainant did not take advantage of the Company’s grievance procedure. As outlined at the last hearing, she agreed that she got this grievance procedure, but bypassed the procedure which afforded her several options as follows:

-             (a) bringing the grievance to her immediate supervisor Mr. RF

-             (b) or to Mr. AM;

-             (c) or to Mr. EM, Managing Director.

Citizens Information did not specify the nature of the grievances except to claim on the Complainant’s behalf that grievances existed. In a telephone conversation with Ms. MW of Citizens Information on or about 23rd February 2015, Mr. EM requested that Ms. MW outline specifically the allegations to him. She did not know them but put generally in a letter “what has occurred to the Complainant. .. “

To date the Respondent has not been made aware of these unsubstantiated claims and still await specifics on them.

It is submitted that these so-called disciplinary letters are in fact clearly marked as “INVITATIONS”. The Company and its managing director Mr. EM maintain that it is entitled to invite its employees to discuss claims made against it especially to outside agencies particularly in circumstances where the complainant has failed to utlilise the published grievance procedure.

Letter dated 25th February, 2015 (1)

This letter is an INVITATION to explain bringing internal issues to an outside agency (Citizens Advice) contrary to the procedure laid down in the Grievance Procedure and the Handbook - both of which the Complainant acknowledged she had received.

This letter does outline at the end the investigation of the issues, possible sanctions might apply and the Complainant would have the right of appeal. (as outlined in the Grievance Procedure and the Handbook) The Complainant acknowledge she had possession of both and was aware of the process. The above letter at the end outlines discipline sanctions possible should the need arise and appeals available there as per her handbook

Letter of 25th February 2015 (2)

This letter is an INVITATION to EXPLAIN and relates to withholding of Medical Certs issued on Friday 13th February and presented on the 17th February. In this, the company asks for explanations on her actions - it does not state discipline of any kind.

Letter Dated 25th February, 2015 (3)

This letter is an INVITATION TO EXPLAIN (having gone to Citizens Advice and not engaged in the Grievance Procedure and the Handbook)

The Respondent simply required the Complainant to list in writing the issues, events, times and witnesses so a full investigation could be undertaken. The Complainant also complained of stress and was simply asked to explain in writing the issues, events, times and witnesses so a full investigation could be undertaken.

The company and its personnel totally refute the claim that the letters were inappropriate or oppressive or victimising in that they ask questions which to date remain unanswered. In fact the letters were posted pre-illness and so, were issued in a time of her natural good health, not as the Complainant would have us believe during sickness.

The Complainant will be unaware of anyone else receiving this type of correspondence since it would be confidential as it concerned other staff. However, the Respondent confirms that other staff members received similar letters:

·         SC for a case in point was written to and reprimanded for aggressive behaviour and physical assault on a delivery man visiting the firm.

·         Pat was written to and reprimanded for an assault on another member of staff

·         CC was written to for misappropriation of company property.

The Complainant visited the doctor at 8.30 on the morning of the 13th February and withheld a certificate of illness from the company and only submitted it on the 17th February following and she agreed that she told an untruth about her visit on the Saturday 14th. She made it known to the other members of staff that she had told an untruth to the manager and so she felt that she was in trouble for telling untruths.

The company and Mr. EM do not feel in any way that the Complainant acted inappropriately in consulting with her doctor / medical practitioner. The company has a policy of absolutely not interfering in any way with any medical care for any member of its staff. Rather it tries to be pro-active in prevention and so may recommend attendance with a doctor.

The Respondent claims, quite rightly, that the Complainant withheld vital medical evidence from it.

She attended work in a crisis flood situation and then refused to go home for safety reason having been advised to do so. The Complainants doctor clarified that she ONLY attended on the Friday 13th and NOT on Saturday 14th as she claimed.

The Respondent’s INVITATION was to ask the Complainant to explain her untruth to them and why she withheld the certificate from not only the Respondent and also from her direct supervisor Mr. RF and from next in line Mr. AM and why she did not advise her colleague the next day that she would not be in for work, for, if in the event that she did not want to advise Mr. EM because she incorrectly felt that he was under stress she could have advised a colleague of equal standing to herself.

She remained working in an unsuitable environment after being told to go home for safety reasons by her immediate supervisor, Mr. RF and then by Mr. AM the next in line, and by other members of staff and she knowing that she would have a Pregnancy Issue the next day.

See E-mail of 3rd March, 2015

The email of the 3rd March 2015 states that that the Respondent simply wishes to go through all the aspects of letters from outside agencies which purport to be based on discussions with the Complainant and have greatly distressed the Respondent who is entitled to explanations. The letter further goes on to state that the meetings are postponed until such time as the Complainant is fit to return to work. Again, in a letter of 3rd March from Citizens Advice on the Complainant’s behalf they do not anywhere mention discipline but rather “meetings” (only).

The Complainant’s claim that her maternity claim could not be approved is untrue. Also untrue is the claim by the Complainant that the Department of Social Protection contacted the company in this regard. In fact, the Department are bound by the rules of Confidentiality and data protection not to disclose details of their client to any third party and so must go through their client to the company. The Complainant in her original submission copied over the particular Maternity Claim Form. It took the Respondent some time to get the actual form, examine it fully, observing what had been copied over and the following is the accurate situation:

This is the second time that the Complainant has incorrectly filed her maternity forms with the Department of Social Protection. The first time was in 2013. The benefit must be applied for 6 weeks before Maternity Leave. The Complainant’s Maternity Leave started on the 6th April, 2015. The Complainant presented the form to us on the 14 January, 2015 - some 12 weeks before.

As she had not having reached her 6 weeks / 6th April date the Respondent could not complete the form and we believe we advised her to hold this form for proper completion later at the appropriate time.

Instead she filed the form to Department of Social Protection in advance of the proper date as she also did previously in 2013. The Department of Social Protection did not contact the company – this is a lie.

On the 5th March she received a letter from Social Protection asking for details of her contributions which the Respondent previously told her she would have to present to them at the correct time.

The Respondent could not fill in the relevant detail until the 24th February. She submitted the form to the Department on 14th January

On 6th March the Complainant, wrote a letter to the Respondent, accompanied by the Form part 4 (PRSI record)

NOTE – The letter of the 6th was posted on 6th March a Friday.

The Complainant travelled more than 8 kilometres to Navan to post a letter in a facility only a short distance from the door of her employer.

The request arrived on the 11th March. - the post was held over the weekend and the Respondent dispatched it to Social Welfare on the 12th March.

There was ONE day between when they received it and dispatched it. It arrived at Social Welfare next day 13th

The Complainant should have presented the Form to the Respondent correctly. She should have followed the clear instruction given to her on the 14th January to hold the form. But instead she chose to send an incomplete form to Social Welfare. She would get Maternity Benefits 2 weeks before expected delivery date - 21 - 4 – 15.

She did not lose out nor was she delayed in her benefit.

It was by her own actions – against advice – that she presented the form too early. The company was in no way responsible for her not complying with the instructions on the form and that in any event she did not lose either time or benefit by any delay.

It was purely by her actions that the application for benefit was delayed by 3 or 4 days only. Her allegation that the Respondent delayed the claim is bizarre in that she herself is responsible.

SUSI FORMS

The Respondent again refers to the SUSI issue where in the Complainant claims that the Respondent deliberately put obstacles in the way.

The following is the history of the SUSI form:

The company received the SUSI form from Citizens Advice and NOT

from an e-mail source as claimed and the Respondent examined it in detail.

Its completing of the form is based as follows: The form is very specific:

Applicant name: S OB

Student grant application number W141510326647

Description of documents needed

S OB

Ref Z7 – Declaration Form

J OB / Father

Documents

F16 Confirmation of Current Salary

T OB / Mother

Documents

E1a Dependent children Birth Certificates. There is no request for a Certificate of earnings

S OB

SUSI Student grant application number W141510326647

Documents Needed

F16 Confirmation of Current Annual Salary

The attached form was for Current Annual Salary

It required the Applicants name and the applicant’s W number (see W number above)

It then goes on to ask for the employer’s name and address

The company does not now nor ever has employed S OB. Neither does the form ask for anything from T OB except the Birth Certs.

In further defence of the company (the Respondent) phoned the SUSI office for clarification and the following is the reply it received from the personnel there:

As you are not the employer of the applicant (W number) you do not have to fill out the salary form Unless you receive a Separate MOTHER salary form request and only if sent by SUSI directly to you.

In a further follow up phone call from SUSI at 4.55 pm on 31 March 2017, SUSI stated the following;

as you are NOT the employer of the applicant nor are you the employer of the father and as the only requirements on the Document Schedule from SUSI is for Confirmation of Current Salary from the Father and from the Applicant herself (the W number) there is no need for you to fill in a Confirmation of Salary, neither should you supply a letter of Salary as should a SUSI form be required for the mother a specific request will be sent requesting this specifically. You would get the form at that point of request.

The Respondent replied correctly to Citizens Advice on the basis that they were given authority by the Complainant to act on her behalf and it would be wrong of the company to correspond with the Complainant under that authority in much the same way as bypassing a solicitor.

The company (Respondent) contends that this is yet another attempt to bolster up a vexatious continuing range of fabricated issues.

At the end of this submission we will display in single statement format the full range of issues fabricated by the Complainant who attempts to mislead the Tribunal with inventions of abuse and discrimination littered with untruths.

The SUSI Form is very specific in its requirements. We refer back to our answer at 29C previous above and we again state that S OB is not now and never was employed by us and so the content of the form is not relevant to us.

As the post can usually arrive at 8.00am or before and up to 8.30am the post can be placed in the letterbox early or handed in. In any case the supposed Registered letter we are told is apparently marked “attempted delivery” was NOT refused.

This “official return to work” letter is not an error. We would accept her return date as being the 6th but however an actual paper letter was still required (under law) for her to return to work and it should be signed and dated.

We refer again to the Handbook 5 from 6 which the Complainant was fully aware of at the time and has confirmed that she did on previous occasion change her hours. Other staff members changed their hours of working as was required of them.

The Complainant has not, even at this late stage, complied with the Adjudicator’s direction on 23rd February to provide comprehensive evidence of attempts to gain employment.

The Complainant has failed to provide full details of the Course she told the Tribunal she had / was doing, together with details of the course, the times and dates of the course, and the achievement at the end.

The Complainant has failed to provide a full list of all places she has contacted for employment.

The Adjudicator requested the Complainant to furnish the Respondent with a copy of her CV and none has been furnished.

Neither on inspection of the few e-mail applications she has furnished is there any evidence whatsoever of a CV being attached to them. There is always an Icon visible – but not in this case.

To this end the Respondent advises that no replies have been forwarded for examination as to the applications being made or being refused.

The Respondent advises that to date - 18 months after the Complainant resigned – no one, in Excel Print management, has ever received a phone call, or mail, or letter requesting a reference on behalf of the Complainant.

The Respondent respectfully submits that quite a number of supposed applications for employment were made by the Complainants sister using her company mailing system which by default shows that the Complainant did not make these applications.

Legal Basis for the Claim

1.       In response to the Complainant’s Submissions set out in Paragraphs 48-65 inclusive, it is submitted that the Complainant has failed to establish a prima facie case of discrimination and, consequently, her claim cannot succeed. The Respondent relies on Section 85(a) of the Acts which provides for the allocation of the probative burden within its ambit. Section 85(a) states:

“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.”

2.       This requires that the Complainant must establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him or her. If he or she succeeds in doing so, then and only then, it is for the Respondent to prove the contrary. The Respondent relies on the case of Teresa Mitchell –v- the Southern Health Board (Cork University Hospital) in which the Labour Court stated: “The first requirement .... is that the Complainant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them.

This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they are seeking to raise a presumption of unlawful discrimination.   It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

3.       The Respondent further relies on the case of Graham Anthony & Co. –v- Margetts where the Labour Court stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

4.       Section 6(1) of the Acts provides that discrimination shall be taken to occur where: “a person is treated less favourably than another person is, has or would be treated in a comparable situation on any of the grounds specified in subsection (2)”.

It is clear that the onus rests with the Complainant to establish a prima facie case of discrimination on one of the grounds covered by the Acts.   The high threshold which must be met to establish discrimination was outlined in the Labour Court in Melbury Developments -v- Valpeters where the Court stated that:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

5.       The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-020 as follows:

“It appears to me that the three key elements which need to be established by a

complainant to show that a prima facie case exists are

(i)                  that s/he is covered by the relevant discriminatory ground(s),

(ii)                that s/he has been subjected to specific treatment and

(iii)          that this treatment is less favourable than the treatment someone, who is not covered by the relevant discriminatory ground, is, has been or would be treated.

Applying this test to the Complainant’s case it is clear that she:

(i)            may have been covered by the relevant ground

(ii)           but has not been subjected to specific treatment

(iii)          her treatment is no less favourable than the treatment of any other staff member

In our submission, the Complainant has not submitted any evidence that she was treated less favourably than other employee of the Respondent firm as a consequence of her family status or gender. She was treated as favourably as any of her colleagues would be in similar circumstances.

Findings in relation to alleged breaches of Section 77 of the Employment Equality Act 1998

Based on both written and oral submission presented by the parties, I find as follows:

·         The Complainant did receive a company handbook from the Respondent.

·         The Complainant did receive a grievance procedure from the Respondent.

·         The Complainant did receive a written statement outlining her terms and conditions of employment

·         The Complainant argued that she was treated differently from other employees in the organisation in the following areas:

Ø  Unilaterally changing the Complainant’s working hours and requiring her to work on Saturdays. This constitutes victimisation and harassment. I find that the company handbook allows the Respondent to change their hours of work and to roster employees to work on Saturday to meet business demands. The Complainant previously had worked Saturdays from the Respondent. Other employees also worked Saturdays for the Respondent. I note that the Complainant in her job applications to prospective employers did not appear to have any difficulty in working flexible arrangements. I find that the Complainant was not victimised or harassed by the Respondent in relation to hours of work or Saturday working.

Ø  Suggesting to the Complainant that itmight not be safe to return to work until after her pregnancy I find that the Respondent was made aware by staff members of the medical history of the Complainant. The Respondent was concerned from the Complainant’s health and safety and suggested that she should revisit her doctor and provide to the company a medical cert certifying her fit to return to work. I find that the Complainant was not harassed for victimised by the Respondent.

Ø  The Respondent falsely stated that the Complainant was asked to assist in the completion of a pregnancy risk assessment and failed to engage in the process. I find that the Complainant requested the Respondent to carry out a pregnancy risk assessment when she returned to work on November 2014. She refused to participate in the preparation of the report and when it was completed she did not discuss any of its contents with her employer. I find that the Complainant was not victimised in relation to the pregnancy risk assessment process.

Ø  The Respondent sent three letter to the Complainant on the 25th February 2015 requesting her to attend various disciplinary hearings. These letters were entirely inappropriate and oppressive. They amounted to victimisation and harassment. I find that the Complainant was invited by the Respondent to attend meetings with them on the 25th February 2015 regarding the following matters: 1. The first letter was an invitation to the Complainant to explain her bringing internal issues to an outside agency without first informing the employer as to what the issues were. Her actions were contrary to the grievance procedure, which she had a copy of. This was an invitation meeting not a disciplinary meeting. 2. The second letter was an invitation to the Complainant to explain matters relating to the withholding of a medical certificate issued on Friday 13th and presented to the employer on Tuesday 17th February. 3. The third was an invitation to explain to the Respondent what exactly were the issues and grievances that she had so that the Respondent could fully investigate them. The Complainant also complained of stress and was asked to explain in writing what issues she had relating to stress. In find that the Complainant was not victimised or harassed in relation to these letters.

Ø  The Respondent’s reaction to the Complainant attending her doctor on the 14th February 2015 is clearly an attempt to penalise for raising the complaint and as such amounts to victimisation. The Respondent admitted to contacting the Complainant’s doctor under an assumed name, to canvass information which was sensitive and which could not have been for the stated purpose relied upon to support the contention that the Respondent’s conduct was entirely inappropriate. I find that the Respondent is the Account Executive of the Medical Practice and it was important to distance himself from direct name contact with a person who would be placing orders with the company through him. As a result of the Respondent’s query, the Complainant was given a gratuity for her time sick and was paid for the week that followed. The Complainant visited her doctor on the 13th February 2015 and was issued a certificate. She did not attend her doctor on the 14th February 2015 as she alleges. She only submitted her medical certificate to her employer on the 17th February 2015, yet she gave the impression to her employer that she attended her doctor on the 14th February 2015. In the circumstances, I find that it was reasonable for the Respondent to contact the Complainant’s doctor in order to ascertain certain facts in relation to the Complainant.

Ø  The Complainant’s maternity benefit could not be approved because the Respondent to respond to a request made by the Department. The action of the Respondent amounts to victimisation. I find that the Respondent did assist the Complainant in processing her maternity application forms. However, the Complainant attempted to make her application for maternity leave too far in advance. The Respondent made the Complainant aware of this. The Respondent could not fill-out the relevant detail on the form until the 24th February. She submitted it to the Department on the 14th January. The Complainant eventually filled in the form correctly. She did not lose out nor was she delayed in her benefit. The Respondent did not delay her claim for maternity benefit. The Complainant was not victimised in regards to this matter.

Ø  The Respondent failed to respond reasonably to the Complainant’s request regarding the completion of a standard SUSI grant application for her daughter. This conduct amounts to victimisation. I find that the Respondent phoned the SUSI office for clarification on the filling in of this form. The applicant was not an employee of the organisation. The Respondent replied correctly to Citizens Advice on the basis that they were given authority by the Complainant to act on her behalf and it would be wrong of the company to correspond with the Complainant under that authority in such the same way as bypassing a solicitor. I find that the Complainant was not victimised in regards to this matter.

Therefore, I find that the Complainant was not discriminated against on the grounds of gender and /or family status and was not treated differently on the grounds of her pregnancy. She was not was discriminated against, victimised or harassed in relation to her conditions of employment. She was not discriminatory dismissed.

Findings in relation to alleged breaches of Section 8 of the Unfair Dismissals Act 1997

The Complainant submitted a letter of resignation to the Respondent on the 19th January 2016. The letter stated

“Dear E,

Your conduct towards me since my maternity leave and recent absence from work on certified sick leave has been both unreasonable and unduly hostile and your conduct towards me generally over the last two years has been entirely inappropriate and an affront to my right to dignity at work.

Despite my repeated requests, you have failed to furnish me with a copy of any terms and conditions of employment specific to my role and please note that I refute that I have ever been furnished with same.   Your recent conduct in insisting that my medical certificates are furnished in “Paper letter” format are not only bizarre but clearly intended to cause me further distress as is your recent refusal to accept registered correspondence from me with a view to complying with this unilaterally imposed requirement.

Your conduct towards me has been so unreasonable as to constitute a breach of the necessary trust and confidence between me and my employer and is in breach of the implied terms of my employment with you.

As such please note that I resign my position with immediate effect. Please send me on a copy of my P45 and outstanding entitlements including any accrued annual leave entitlements and outstanding pay by return.

Yours sincerely

TOB”

The Complainant alleges that she was constructively dismissed by the Respondent. The burden of proof is clearly on her to establish that her dismissal was unfair.

In Brian Butler v Ryanair Limited UD 1222/2011 states

“The Tribunal accepts the submission of the respondent that the test in relation to constructive dismissal is that the actions of the employer must be such that they constitute a fundamental breach of the employment relationship, that is, a significant breach going to the root of the contract such that it allows the employee to treat themselves as discharged from further performance of the contract as outlined at paragraph 19.06 of Redmond, Dismissal law in Ireland (2nd ed.)

Based on both written and oral evidence given at the hearing, I find that the Complainant was not constructively dismissed from her employment.

The Respondent’s actions towards the Complainant in relation to her maternity leave has not been reasonable and has not been an affront to her right to dignity at work.

The Complainant was furnished a copy of her terms and conditions of employment. The Respondent did not treat the Complainant in any way different to other employees when seeking copies of medical certificates. The Complainant did receive a company handbook, which clearly outlined the format for providing medical certificates to the Respondent. The Complainant was also provided a grievance procedure, which outlines the process to be followed in highlighting any grievance that may arise between her and the Respondent. She failed to follow these procedures.