ADJ-00013649

Complainant

Respondent

Anonymised Parties

Administration Officer

Glazing Company

Representatives

Self

Caroline Browne, HR Consultant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017921-001

13/03/2018

The Complainant was employed by the Respondent on a 12 month fixed term contract which commenced on 2 October 2017. The Complainant was dismissed with effect from 8 January 2018. The Complainant is claiming that she was dismissed after she informed the Respondent that she was pregnant.

The Respondent denies the claim and says that the Complainant was dismissed due to poor performance.

The Respondent asserts that, in naming XXXX Limited as the Respondent on her complaint referral form, the Complainant has named the wrong Respondent.

The Respondent maintains that the Employee’s contract was with YYYY Limited and that YYYY Limited is named as the employer on the Complainant’s payslips and on all returns to the Revenue Commissioners in relation to the Complainant.

The Complainant contends that she was not clear about the correct name of her employer.

While she acknowledges that her contract is with YYYY Limited, she points out that under the section in her contract outlining her Function and Duties reference is made to both XXXX Limited and YYYY Limited.

The Complainant has also provided a copy of her bank statement which shows that her salary was paid by XXXX Ltd.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that YYYY Ltd is the correct legal name of the Complainant’s employer.

I must now decide whether the Respondent named on the complaint referral form can be changed to the correct legal name of the Complainant’s employer.

Section 39 of the Organisation of Working Time Act 1997 provides that the name of the Respondent on a complaint referral form can be amended in the following circumstances:

(1) In this section “ relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

( a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

( b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

In making my decision I am guided by the majority determination of the Employment Appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39 of the Organisation of Working Time Act 1997 and reached the following conclusion:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”

It is therefore clear that in order for an Adjudication Officer to grant leave to the Complainant to change the name of the Respondent, it must be established, firstly, that there has been inadvertence on the part of the Complainant in terms of the failure to identify the correct Respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the Respondent should not result in an injustice being done to the proposed Respondent.

In considering this issue, it is clear from the documentation submitted in evidence (including payslips, the Complainant’s contract and the Complainant’s bank statement) that different employers’ names were used by or on behalf of the Respondent in the course of interaction with the Complainant.

I am satisfied that the complaint referral form submitted by the Complainant contained a variation of the name of the company that employed her i.e. XXXX Limited trading as YYYY Limited. I accept that in seeking to record the legal name of the Respondent employer on this form that the Complainant through inadvertence failed to cite the precise legal name of this entity. I am satisfied that the actual employer was fully aware at all material times of the herein proceedings.

I am also satisfied that the granting of leave to amend the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent. The correct Respondent attended the adjudication hearing, they had prepared a submission for the hearing, they took full part in the proceedings, and they were represented at the hearing by an external HR Consultant.

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with this claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the complaint referral form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.

The Complaint submits that she commenced work with the Respondent on 2 October 2017 as an Administration Officer.

The Complainant contends there was no formal training provided to her. She further contends that she was informed that as it was a new company, there would be some teething problems and that all the staff were getting to know and learn the different processes within the organisation.

The Complainant says that she was told by senior management on a few occasions that she was doing well and that they were happy with her performance.

She submits that there was an issue with an invoice which she was asked to send to a client on 20 December 2017 but that this was resolved.

The Complainant says that no issues were raised about her performance at her review meeting on 19 December 2017 and she believed that the Respondent was happy with her work. The Complainant submitted that she received an extra week’s salary before Christmas and feels that she would not have received this payment if the Respondent was not happy with her performance.

The workplace Christmas lunch took place on 21 December 2017. The Complainant was on leave from 21 December 2017 until 3 January 2018.

According to the Complainant, on her return on 3 January 2018, she received an email from her manager which was sent at 18.35 on 21 December 2017 in which he said that the Respondent was not happy with her performance. He also alluded to the Complainant’s inappropriate use of offensive language and expressed the hope that it would not continue.

The Complainant maintains that she had never used offensive language.

The Complainant says that she responded by email to say that the performance issues detailed in her manager’s email were never raised with her. In her email, she asked if she could meet her manager and another member of the management team for quick meeting.

The Complainant submits that initially the manager indicated that he did not want to meet her but when she explained that the purpose of the meeting was not just about her reply to his email regarding her review, he then agreed to meet her.

The Complainant says that in the meeting she told her manager that she was pregnant. According to the Complainant he congratulated her and did not say anything further.

The Complainant submits that on the same afternoon (3 January 2018), another member of the management team congratulated her on her pregnancy and said that they would let the dust settle and have a chat in the next few days.

The Complainant contends that when she went to work on Monday 8 January 2018, she saw that another woman had commenced employment with the Respondent and that she was not sure what the new employee’s role was.

According to the Complainant, her Manager asked if he could have a word with the Complainant in his office. The Complainant submits that her manager told her that it wasn't working out and that there was no point in goinginto reasons why.

The Complainant contends that her Manager told her that she wold be paid until the end of January and that she did not have to work her notice.

The Respondent submits that following the Complainant’s commencement of employment in October 2017, concerns arose with regard to her performance in the role.

It is the Respondent’s contention that errors and omissions were noted and that the Complainant’s manager was concerned about her suitability for the role.

The Respondent asserts that in order to highlight these issues and concerns, her manager set out his concerns in writing regarding her performance vis-à-vis expectations by email on 21 December 2017.

In the email the manager wrote:

“… Moving into 2018, we feel it only fair to say that YYYY will require a step up in performance from you over the next three months as you remain under probationary review.

Following our recent initial performance review, we would say that there have been quite a few shortcomings in terms of your performance against expectations of the role and particularly on tasks that have been allocated to you that have not been performed correctly despite training and guidance provided. These errors and the efforts on management’s part to you with assisting in correcting these issues have been discussed with you last week to ensure you are completely clear on our expectations in this regard …

... There have also been a few other issues raised with you that you need to address in particular your continued used of offensive language which is not appropriate in a work environment.   We would ask you to be conscious of this and ensure that this behaviour is corrected and does not continue.

We will, as discussed, allow a further 12-week period of review (or a lesser period if this is deemed appropriate by us) to measure your progress against the expectations of the role.

During this period, we will continue to review your performance, but I certainly hope our recent discussion along with this note gives you clarity in terms of the areas of concern that need to be addressed.

We do hope that you will be capable and willing to fulfil the role but note that the result of your initial 3-month review meeting was not as positive as we would have hoped.

Please feel free to arrange a meeting to discuss progress with us early in the New Year 2018.”

The Respondent submits that the above communication provides evidence that issues with the Complainant’s performance has arisen prior to her announcing her pregnancy.

The Respondent maintains that the extra payment to the Complainant at Christmas was a Christmas bonus which was paid to all employees.

With regard to the management of the Complainant’s performance, the Respondent submitted that they believed in encouragement and not in micro-management.

Prior to the issuing of the email on the 21 December 2017, the Respondent said that the Complainant’s manager made general comments to all the staff about the use of offensive language. He did not say anything specific to the Complainant as he did not want her to feel that she was being reprimanded.

The issue for decision by me is whether the Complainant was unfairly dismissed as a result of her pregnancy. I have considered the evidence adduced by the parties and read the submissions and documents furnished.

The Complainant in the herein case had just 14 weeks’ continuous service with the Respondent.  Section 2 of the Unfair Dismissals Act 1977, requires that an employee has at least 52 weeks’ continuous service with the dismissing employer before they can claim unfair dismissal under the Act as follows:

“2(1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”

However, Section 6(1) of the Act sets out the exceptions to the requirement to have 52 weeks of continuous service with the dismissing employer including, in Section 6(2)(f) the employee’s pregnancy:

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

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

… ( f ) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith, … “

I find, therefore, that the Complainant is covered by the provisions of the Unfair Dismissals Act 1977 by reason of her pregnancy.

The burden of proof lies with the Respondent to prove on the balance of probabilities that the Complainant’s dismissal was unrelated to her pregnancy.

In reaching my decision, I am guided by the Determination of the Labour Court in Trailer Care Holdings Ltd v Deborah Healy (EDA128) where the Labour Court was asked to determine if the Complainant’s dismissal occurred as a result of her pregnancy.

In its Determination that Labour Court stated:

“It abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicated within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is dismissed during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy.”

I note that the Respondent has submitted that the Complainant was dismissed due to underperformance and not due to her pregnancy.

Section 6(4) of the Unfair Dismissals Act 1977, provides that a dismissal shall not be deemed to be unfair if results wholly or mainly from a number of criteria including competence:

“6(4) 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, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, …”

In the Employment Appeals Tribunal case Richardson v H Williams & Co. Ltd(UD/17/1979,) the Complainant was dismissed because the Respondent had been dissatisfied with his work performance. The EAT noted that the claimant was not given an opportunity to defend himself and the Tribunal applied the following principles:

“(a)Where an employee has been given a justified warning that, unless his or her work improved in a specific area, his or her job would be in jeopardy, then it follows that such employee must be given:

(i)a reasonable time within which to effect such improvement; and

(ii)a reasonable work situation within which to concentrate on such defects.”

It follows, therefore, that before a decision is made to dismiss an employee, an employer should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

I find that once the Complainant made the Respondent aware of her pregnancy, she had entered a protected period and there was an added responsibility on the Respondent to ensure that their actions were procedurally robust.

I find that the Respondent did not meet with the Complainant to ensure that she fully understood the issues they had with her performance. I further find that the Respondent did not put a plan in place to address those issues. In addition, I find that any supports or training that was required could and should have been made available to the Complainant.

I note the Respondent’s statement in their email of 21 December 2017 to the Complainant that: “we will, as discussed, allow a further 12-week period of review (or a lesser period if this is deemed appropriate by us) to measure your progress against the expectations of the role.”

I find, therefore, that a formal review process in relation to the Complainant’s performance should have been agreed and that the Complainant should have been made aware that failure to improve performance could result in dismissal.  

I find that when the Respondent was made aware of the Complainant’s pregnancy, they did not engage with her with regard to her performance. I find, on the contrary, they dismissed her from her position.

The Respondent paid the Complainant her full salary until 2 February 2018. The Complainant’s weekly wage during her employment with the Respondent was €644.23. The Complainant was in receipt of maternity benefit of €235 per week from 3 February 2018 until 3 August 2018, after which she was in receipt of Social Welfare.   The Complainant’s due date was 19 May 2018.

Section 10(1) of the Maternity Protection Act 1994 provides, inter alia, that:

“… the minimum period of maternity leave shall commence on such day as the employee selects, being not later than two weeks before the end of the expected week of confinement ...”

Accordingly, I find that if the Complainant had not been unfairly dismissed by the Respondent, she could have continued to work until two weeks before her due date i.e. until 4 May 2018.

I find, therefore, that as a result of her unfair dismissal, the Complainant was in receipt of maternity benefit for 13 weeks longer than she would otherwise have been.   Accordingly, I find that she was at a loss of €409.23 per week for 13 weeks which equates to a total loss of €5,319.99.

I would point out that I am constrained by the statute as to the level of compensation which I can award and had I not been subject to that constraint, I would have awarded a significantly higher amount given the unfair treatment to which the Complainant was subjected.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the complaint is well founded and I award the Complainant €5,319.99.

Unfair dismissal, pregnancy related