ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012756

Parties:

	Complainant	Respondent
Anonymised Parties	A Medical Secretary	A Medical Center

Representatives

Cathal Mooney John Battles & Co. Solicitors

Not present

Complaint(s):

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-00016882-001	17/01/2018

Date of Adjudication Hearing: 19/06/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant was alleging unfair dismissal due to maternity leave.

Summary of Complainant’s Case:

The Complainant was employed as a Medical Secretary from September 9th 2016 to march 3rd 2018. She went on maternity leave on July 18th 2017 and notified her employer of same. She notified her employer of her intention to return to work on January 17th 2018 but was told she was no longer required due to restructuring. She was not paid redundancy. The respondent notified all staff by text that a new Office Co-Ordinator had commenced work and would be dealing with all office and HR matters.

The Complainant had completed a level 5 payroll course and had expectations of taking on more duties with the Respondent.

The Complainant tried to contact the Respondent by phone but her calls were not returned.

The Respondent opened a new office in the same city as where the Complainant was employed and advertised for the same role as the Complainant in that office on January 1st 2018 and a copy of the advertisement was submitted to the Hearing. The Complainant was neither consulted on the supposed rationalization nor offered the same role she had in the new office.

The Complainants case is that she was dismissed unfairly while on maternity leave and seeks compensation accordingly.

Summary of Respondent’s Case:

The Respondent was not present at the Hearing.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

		Section 6 of the Act states the following: “6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
		(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,
		(b) the religious or political opinions of the employee,
		(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,
		(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,
		(e) the race or colour of the employee,
		(f) the pregnancy of the employee or matters connected therewith, unless—
		(i) the employee was unable, by reason of the pregnancy or matters connected therewith—
		(I) to do adequately the work for which she was employed, or
		(II) to continue to do such work without contravention by her or her employer of a provision of a statute or instrument made under statute, and
		(ii) (I) there was not, at the time of the dismissal, any other employment with her employer that was suitable for her and in relation to which there was a vacancy, or
		(II) the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding pregnancy.”

Having considered the evidence of the Complainant and in the absence of the Respondent providing any contradictory evidence I find that the Complainant was dismissed while on maternity leave without any consultation or on reasonable grounds and in breach of Section 6 (f) of the Act. Even if the office in which she worked was being rationalised the fact that a similar role to the Complainants role was available in a nearby office this should have been first offered to the Complainant as a suitable alternative. Neither took place.

I award the Complainant 8,000 Euros for the breach of the Act.

Dated: 12th July 2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair Dismissal