UDD1853

The Adjudication Officer, in a decision dated 2nd February 2018, found that the complaint failed.

The Case

The Appellant commenced employment with the Respondent on 15^thNovember 2016 and her employment was terminated by reason of dismissal on 27^thJanuary 2017. She was employed for a period of approximately 10 weeks.

The Appellant was pregnant at the time of her recruitment but did not so inform the Respondent at the time of Recruitment. She did not formally advise the Respondent of her pregnancy at any time before her dismissal. The Respondent dismissed the Appellant and stated to her that the dismissal was for the reason that she was not an appropriate fit with the organisation.

Summary position of the Respondent

The Respondent submitted that two more senior colleagues coached the Appellant throughout her employment and that both of these more senior colleagues concluded that the Appellant did not react positively to the instructions and coaching provided. The two senior colleagues approached the HR Director after ten weeks of employment, which was during the Appellant’s contractual probationary period, and recommended to him that the Appellant’s employment should be terminated. The Respondent’s HR Director dismissed the Appellant on foot of those recommendations and advised the Appellant that she was not an appropriate fit for the organisation.

The Respondent submitted that the Appellant at no time advised it that she was pregnant and submitted that none of the personnel involved in the decision to dismiss her had knowledge prior to her dismissal that she was pregnant. The Respondent submitted that the dismissal did not occur by reason of the Appellant’s pregnancy and consequently, because she had not been employed by the Respondent for a period of 12 months and was in a period of contractual probation, by operation of the Act at Sections 2(1) and Section 3, the protections of the Act cannot apply to her.

Evidence on behalf of the Respondent

Ms H gave evidence that she had coached the Appellant throughout her employment and that she had observed that the Appellant had, on a number of occasions, made errors in the internal systems employed by the Respondent to manage staff attendance at client companies. The errors of the Appellant put staff at risk and exposed the Respondent to complaint from clients. In addition, certain basic phone related tasks were not carried our correctly by her on a number of occasions. She said that mistakes by the Appellant had led to a complaint from a major customer of the Respondent. She stated that she was not aware of the Appellant’s pregnancy prior to the dismissal of the Appellant. She said that the Respondent had a range of procedures in place to minimise risks to pregnant workers but that these had not been applied to the Appellant because she had never advised the Respondent of her pregnancy. She stated that the uniform clothes provided to female employees were of a ‘baggy’ nature. She said that, ultimately, she discussed her concerns as regards the work performance of the Appellant with another colleague, Ms O’D, and with the HR Director. She said that she was not made aware by Mr C, a roster supervisor, that the Appellant was pregnant.

Ms H stated under cross examination that she had made the Appellant aware of her concerns but that ultimately, she concluded that the Appellant was not a good fit for the organisation.

Ms O’D, a senior employee with HR responsibilities, gave evidence that she regularly interacted with the Appellant with particular regard to vetting procedures for new hires carried out in accordance with relevant regulations. She said that the Appellant carried out her work in such a way as the backlogs in the vetting work did not reduce. She said that she regularly coached the Appellant on this aspect of her work but that the Appellant failed to respond effectively. She said that the Appellant was not given a workload greater than any previous incumbent in her role. She said that she did not know that the Appellant was pregnant prior to the Appellant’s dismissal. She stated that she advised the HR Director of her concerns as regards the work performance of the Appellant and that the HR Director subsequently dismissed the Appellant.

Mr SC, HR Director with the Respondent, stated that he was advised of their concerns in relation to the work performance of the Appellant by Ms O’D and Ms H. He said that many other persons had occupied the role which the Appellant had occupied and that he was satisfied that the Appellant had received the same training as everybody else. He said that he had concluded that the Appellant had made too many mistakes of a major and minor nature and was not a good fit for the Respondent organisation. He said that he had no knowledge of the Appellant’s pregnancy prior to her dismissal and stated that the decision to dismiss was solely related to work performance issues during her probationary period.

Summary position of the Appellant

The Appellant submitted that she had not advised the Respondent of her pregnancy prior to her dismissal. She said that she was seven months pregnant at the time of her dismissal and that she was obviously pregnant. She submitted that she had advised a colleague, MR C, of her pregnancy one week before her dismissal and she submitted that the Respondent should have known of her pregnancy as a result of her advising her colleague of her pregnancy.

The Appellant submitted that no significant performance issues were raised with her prior to her dismissal and that no matters had arisen during her employment which could reasonably have led to her dismissal. She submitted that her record of employment prior to taking up a role with the Respondent was of good performance with other employers. She had received no disciplinary warnings or negative feedback as to her performance prior to her dismissal.

Evidence of the Appellant

The Appellant stated she was pregnant at the time of her recruitment by the Respondent and that she did not advise the Respondent of that fact at the time of recruitment or formally at any other time. She stated that she hid her pregnancy from the Respondent at all times during her employment.

She said that her role was a busy one with the Respondent and that she had many tasks to carry out. She said that she had been praised by staff of the Respondent during her period of employment and had received only one complaint as regards her performance.

She said that one week before her dismissal she spoke to a colleague, Mr C, with whom she had regular contact. She said that he asked her if she wished to have a family and she replied that she was pregnant. She said that Mr C advised her not to speak of her pregnancy in the workplace.

She said that she was obviously pregnant and that the respondent managers must have known of her pregnancy. She said that the HR Director informed her of her dismissal and stated to her that she did not fit with the organisation.

Under cross examination the Appellant stated that she hid her pregnancy from the Respondent. She said that she received no complaints from Ms H or Ms O’D as regards her performance.

In evidence she stated that Mr C did not know of her pregnancy until one week before her dismissal when she made him aware of that fact. She stated that she believed that Mr C told others of her pregnancy.

The Law

The Act at Sections 2(1) and 3, in relevant part, provide 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 F9,

• 3. (1) Except in so far as any provision of this Act otherwise provides This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—
  • (a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or

The Act at Section 6(2)(f) sets out that a dismissal on grounds of pregnancy shall be unfair and Sections 6(2)(A) 6(2)(B) set out that Sections 2(1)(a) and 3(1)(a) above do not apply where the reason for dismissal is the pregnancy of the complainant.

Discussion and conclusions

The contention of the Appellant is that she was dismissed because of her pregnancy. In order for a Complainant to have locus standi to make a complaint under the Act he or she is required by the Act at Sections 2(1)(a) and 3(1)(a) to have 12 month’s service with the employer at the date of dismissal. The Appellant had 10 weeks service at the time of her dismissal. However, the Act at Section 6 in effect provides that where the alleged reason for dismissal was pregnancy a dismissal is unfair within the meaning of the Act regardless of length of service with the Respondent.

By operation of the law therefore, the Appellant had the protection of the Act from dismissal on account of her pregnancy but not otherwise. Therefore, in order for the Court to find in favour of the Appellant’s complaint of unfair dismissal it must find that pregnancy was the reason for dismissal.

In this case the Appellant asserts that, although she never advised the Respondent of her pregnancy, she was obviously pregnant at the time of her dismissal. She confirmed to the Court that she hid her pregnancy from the Respondent throughout her employment and it is common case that she wore loose uniform clothes during her employment. The Court has heard evidence from the Appellant that she told a colleague, Mr C, with whom she had regular contact, of her pregnancy one week before her dismissal. The Court has also heard evidence from the Appellant that up until that point Mr C did not know of the pregnancy. It is common case that Mr C was not a manager or a person with any function in relation to the Appellant’s employment. Mr C, according to the Appellant, had, one week before her dismissal, initiated a conversation by asking the Appellant whether she would like to have a family. The Appellant then advised him that she was pregnant. At that point in the conversation, on the evidence of the Appellant, Mr C advised her not to speak of her pregnancy in the workplace.

Evidence tendered on behalf of the Respondent is to the effect that none of the decision makers in the matter of the Appellant’s dismissal were aware of her pregnancy. Each of the persons involved in the decision to dismiss the Appellant stated in evidence that Mr C did not advise them of the Appellant’s pregnancy prior to the dismissal of the Appellant. They gave evidence to the Court that the sole reason for dismissal of the Appellant following ten weeks of employment was that she did not perform effectively in her job and was not a good fit for the company.

The Appellant has asserted that the Respondent was aware of her pregnancy but she offered no evidence to the Court to support that assertion. The Court cannot elevate the Appellant’s assertion to the status of evidence. The Court has heard evidence from the three staff of the Respondent involved in the decision to dismiss that they were unaware of the Appellant’s pregnancy at the time of her dismissal. All of the managers of the Respondent have outlined in evidence the nature of the concerns which they had as regards the performance of the Appellant and which led to her dismissal. The Appellant has disputed the issues raised by the Respondent and has stated in evidence that no matters of significance were raised with her such that she was advised of any risk to her employment.

It is not for the Court in this matter to consider the fairness or otherwise of the decision to dismiss or to consider the procedures employed by the Respondent in arriving at that decision if the dismissal was not by reason of pregnancy. Rather it is for the Court to determine whether the reason for the Appellant’s dismissal was her pregnancy. If that was the reason for dismissal then, by operation of the law, the dismissal was unfair.

On the basis of the submissions of the parties and the testimony given to the Court, the Court finds, on the balance of probability, that the Respondent had no knowledge of the pregnancy of the Appellant at the time of her dismissal. Consequently, the Court finds that the Respondent has discharged the burden of proof which rested upon it to establish that pregnancy was not the reason for the dismissal. The Court therefore finds that the appeal fails.

Determination

The Appellant was not dismissed by reason of her pregnancy and consequently her appeal under the Act must fail.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
5th October 2018______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.