Complainant

Respondent

Anonymised Parties

An Employee

A Wholesale/Retail Food 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-00016571-001

02/01/2018

The Complainant commenced employment with the Respondent on 13 November 2017. The Complainant's contract of employment, which issued on 30 November 2017, stated that the employment would be on a probationary basis for an initial period of six months.

The Complainant's employment was terminated on 29 December 2017.

In her complaint document, the Complainant stated that she was dismissed without any reason, notice or warning after working with the company during the busiest period of the year, i.e. November/December.

The Complainant stated that, the week before Christmas 2017, her baby bump was visible and, as a result, she was asked, by a fellow employee, if she was pregnant. According to the Complainant, she replied to this query by stating that she was pregnant but that she wanted to work for as long as possible during her pregnancy.

According to the Complainant, in the days following that conversation with her colleague, the Office Manager's behaviour towards her changed. She stated that, after Christmas, the Office Manager came and informed her, in a very unpleasant manner, that her trial period had finished and she should pack her belongings and go home.

The Complainant stated that she was in complete shock at this development. She stated that she remained on the premises for an hour, during which time she spoke with one of the Respondent’s Directors and queried whether she should leave immediately or stay until the end of the day. According to the Complaint, the Director was surprised as he was not aware of the Office Manager's decision.

According to the Complainant, the Office Manager returned after an hour and informed her that there was no reason to stay until the end of the day. The Complainant stated that when she requested a reason for her dismissal from the Office Manager, he just smiled and walked away in silence.

The Complainant further stated that during a second conversation with the Director, the latter stated that he was sorry but that the decision had been made. The Complainant stated that she once again sought a reason for dismissal, the Director failed to provide same and walked away.

In evidence, the Complainant went into significant detail in relation to her job, which she claimed she did well from the commencement of her employment. However, she did refer to the fact that she arrived at the busiest time of the year for the Respondent’s business and that she had not been provided with proper training on the job. However, she stated that she managed to come to grips with the job, including the accounting system, pretty quickly and had no problem undertaking the various tasks assigned to her.

In conclusion, the Complainant stated that, in her view, the reason she was dismissed was because she was pregnant and would possibly be looking for Maternity Leave. In support of this view, the Complainant referred to the change in the attitude and behaviour of the Office Manager towards her when it was revealed that she was pregnant.

Background:

The Respondent stated that the Complainant was employed from 13 November 2017 until the termination of her employment on 29 December 2017, by reason of dismissal, while on probation.

The Respondent stated that the Complainant was offered a full-time, (39 hours per week) position, as set out in the written statement of terms of employment which were signed by the Complainant on 30 November 2017. The Complainant was also provided with a copy of the employee handbook on that date. The contract of employment, combined with the employee handbook, informed the Complainant that she would be on probation for six months. It was further stated, inter alia, in this documentation, that the Company reserves the right to "terminate employment at its discretion during this probationary period”.

According to the Respondent, following commencement of her employment on 13 November 2017, the Complainant underwent two and a half days training from the colleague whom she was replacing. The Respondent stated that the Complainant received a further two and a half days of supervision from the Office Manager. It was stated that, from that point onwards, the Complainant was supervised by the Office Manager.

Response to the Complaint:

The Respondent stated that, on 11 December 2017, the Complainant did not attend for work. According to the Respondent, when the Office Manager eventually got in contact with the Complainant, at approximately 10:30 am that morning, he was informed that she was in hospital but will be back at work the following day. On her return to work on 12 December 2017, the Complainant informed the Office Manager that she has been suffering from "stomach problems" but that she was now feeling fine.

According to the Respondent, in the period leading up to Christmas, the Complainant was verbally aggressive and difficult towards the Office Manager. However, it was stated that, as this was just before the Christmas holidays, the Office Manager decided not to take any action at that point in time.

The Respondent stated that, on 29 December 2017, the Complainant approached the Office Manager stating that one of her work colleagues had not entered an invoice correctly on the SAGE accounts system. According to the Respondent, the Office Manager investigated the matter and found that the colleague was at fault, in entering the wrong code on the system.

According to the Respondent, the Complainant approached the Office Manager, in a distressed and angry manner and began to insinuate that her colleague was not trained correctly the system. It was further stated that the Complainant then queried the Office Manager if he had personally trained the colleague to raise invoices of the system. According to the Respondent, the manner in which the Complainant challenged the Office Manager undermined him and his position.

As the Office Manager is very familiar with the system in question, he requested the Complainant to show him what had been done wrong. According to the Respondent, the Complainant became aggressive and started shouting at the Office Manager. It was further contended that the Complainant raised her voice and would not accept that her behaviour, which was visible to a customer and was also within earshot of the colleague she had been complaining about, was becoming unacceptable.

According to the Respondent, the Complainant was dismissed at that time as a result of her aggressive behaviour. It is further stated that the Complainant refused to leave the office and remained there to speak with one of the Company's Directors.

The Respondent stated that the Complainant returned to the workplace on 2 January 2018 and accused the Office Manager of dismissing her because she was pregnant. The Respondent stated, in evidence, that this was the first occasion that the Directors or the Office Manager were aware that the Complainant was pregnant.

The Respondent drew attention to the fact that the Complainant's complaint of unfair dismissal was lodged with the Workplace Relations Commission at 12:35 pm on 2 January 2018.

In conclusion, the Respondent stated that the Complainant was dismissed from their employment because of her aggressive behaviour towards the Office Manager and unacceptable behaviour in front of staff, management and a customer on 29 December 2017, all of which took place within her probationary period.

According to the Respondent, neither the Directors nor the Office Manager were aware of the Complainant's pregnancy. The Respondent denied the Complainant’s claim that she was treated unfairly by the business and that her dismissal, on 29 December 2017, was as a result of pregnancy.

The Complainant's claim, which is made under the Unfair Dismissals Act, 1977, is that she was unfairly dismissed by the Respondent by reason of her pregnancy. Before assessing the Complainant's complaint in detail, it is necessary to consider whether she has the protection of the Act. The following sections of the Act are applicable in this case.

Section 2 (1) (a) states that the Act does not apply in relation to:

“an employee (other than the person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, has less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result solely or mainly from the matters referred to in section 6 (2)(f) of this Act,”

As the Complainant was only seven weeks in the Respondent’s employment at the date of her dismissal, then Section 6 (2)(f) must apply if she is to have the protection of the Act.

Section 6 (2)(f) of the Act states, inter alia:

“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 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 the 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.

Based on the above, it is clear that the Complainant is relying on section 6 (2)(f) in submitting the complaint of unfair dismissal.

In addition to the above extracts from the Act, I am also guided, in my consideration of the Complainant's complaint, by the decision of the Employment Appeals Tribunal in the case UD591/1999, in which the Tribunal stated as follows:

“The combined effect of Sections 6(1), 6(6), 6(2) and 6(2)(f) do not appear to the Tribunal to alter the basic legal principle which has been consistently held by successive divisions of the Tribunal to apply in these cases, namely, that in order to seek protection of the Unfair Dismissals Act, as amended, the claimant herself must bear the burden of proof in showing herself to be entitled to this protection. This she does by showing that her dismissal was on the grounds of pregnancy.

The claimant must show the Tribunal that it has jurisdiction in the matter. Where the claimant successfully shows the tribunal that her dismissal was, on the balance of probabilities, on the grounds of pregnancy, or matters relating thereto, the Tribunal will then assume jurisdiction in the matter.”

In that context then, I proceeded to consider the Complainant’s complaint that her dismissal on 29 December 2017 was related to her pregnancy.

According to the Complainant's evidence, two weeks prior to Christmas 2017, a colleague queried her as to whether or not she was pregnant. The Complainant stated that the Office Manager overheard this conversation, in which she confirmed to her colleague that she was pregnant. The Complainant also stated that here were similar conversations over the following few days, which the Office Manager also overheard.

The Complainant also stated, in evidence, that the Office Manager was standing next to a colleague from the Production Department when she I asked him (the colleague) for a big box. According to the Complainant, when the colleague queried her as to why she needed the box, she informed him that it was for a gender reveal which she was planning for her husband. It is the Complainant's contention that the Office Manager was present for that conversation and, as a result, would have been aware that she was pregnant.

According to the Complainant's evidence, having become aware that she was pregnant, the Office Manager’s attitude and behaviour towards her changed. She stated that he became much more aggressive towards her, put her under a lot of pressure and appeared to be constantly unhappy with her work. The Complainant further stated that, when they returned to work on 29 December, an issue arose in relation to an invoice and this led to the Office Manager becoming very angry towards her. She stated that having initially walked away, he subsequently returned and informed her that her trial period was over and that she should pack your bags and go.

The Complainant stated in evidence that, when she asked the Office Manager for a reason as to why she was being dismissed, he merely looked at her pregnancy bump and smiled, before walking away. She further stated that when she raised the issue with a Director of the company sometime later, he thanked her for her good work but informed her that he could not change the dismissal decision which had already been made by the Office Manager. According to the Complainant, when she asked the Director if he was aware that they were dismissing a pregnant woman, he nodded his head.

The Office Manager and the Director both gave oral evidence at the hearing which strongly contradicted that provided by the Complainant. In particular, both witnesses were adamant that neither of them were aware, prior to her dismissal, that the Complainant was pregnant. They both stated that the first time they became aware of the pregnancy was when the Complainant came to the work location on 2 January 2018 and accused the Office Manager of dismissing her because she was pregnant.

The Respondent also presented evidence in relation to the Complainant's non-attendance at work on 11 December 2017. According to this evidence, the Complainant attended hospital on that day. When the Office Manager spoke with her about this on her return to work the following day, the Complainant informed him that she had been suffering from "stomach problems" but was now fine to continue working.

With regard to this incident, the Respondent raised a point in relation to why the Complainant had not availed of the opportunity, presented by this health-related discussion with the Office Manager, to advise him formally of her pregnancy. Given that these discussions were taking place in the same week as the Complainant is alleging the Office Manager overheard the conversations in which she was openly speaking about, I find there to be merit to the Respondent’s argument in this regard.

Having carefully considered the evidence presented, I am of the view that if the Office Manager was aware the Complainant was pregnant then, on the balance of probability, it would be more likely than not that he would have raised this during the conversation which was triggered by an absence from work which necessitated hospital treatment.

Consequently, taking all of the above into consideration, I am of the view that the Office Manager was not aware, prior to Christmas, that the Complainant was pregnant. The Complainant clearly did not provide any formal notification to employer of her pregnancy. In addition, I am also satisfied, from the evidence presented, that the Complainant did not even informally raise the issue with the Office Manager.  

Therefore, the Complainant's claim that the Respondent was aware she was pregnant is based solely on her contention that the Office Manager overheard conversations in the office which would have put him on notice of her condition. In his evidence, the Office Manager strenuously denied that he was party to any such conversations or that he was aware the Complainant was pregnant until she announced it to him on 2 January 2018.

In addition to refuting the Complainant's claim that her dismissal was pregnancy related, the Respondent provided credible evidence in relation to what they contended was the actual reason for her dismissal, which was by way of termination of her probation. The Respondent stated that, at the time the Complainant was employed, they were in the process of making significant changes to their Accounting System. According to the Respondent, the Complainant advised at interview that she was familiar with the particular system being implemented. However, the Respondent stated that, when the Complainant started working, they began to have concerns in relation to the extent of her experience or knowledge of the system and to her ability to carry out her intended role.

The Respondent's evidence, much of which was not contested by the Complainant, clearly shows that a number of issues arose between the Complainant and the Office Manager in relation to the operation of the Accounting System and, in particular, the raising of invoices. In his evidence to the Hearing, the Office Manager stated that he had significant difficulties not only with the Complainant understanding of the system but also her attitude and behaviour towards him when discussing these work-related issues.

It is clear from the evidence presented, that the matter came to a head on 29 December 2017 when an altercation arose between the Complainant and the Office Manager. According to the latter, a significant difference of opinion arose between them in relation to an invoice. The Office Manager stated that when he asked the Complainant to demonstrate where she believed he was wrong and she was right, the latter was unable to do so.

In further evidence, the Office Manager stated that the Complainant displayed unacceptable behaviour during this interaction. According to the Office Manager, the Complainant's behaviour, coupled with his concerns in relation to her ability to do the job she was employed to do, led him to decided that she was not a proper fit for the business and, as a result, decided to terminate her probation.

Taking all of the above into consideration, I am satisfied that, in a context where the evidence does not support the contention that the Respondent was aware of her pregnancy prior to Christmas 2017 and in a context where the evidence shows the Respondent had significant concerns with regard to her performance/behaviour, the decision to terminate Complainant's employment could not be considered at all, let alone wholly or mainly, related to pregnancy.

Consequently, the Complainant's complaint, that her dismissal was pregnancy related, is rejected.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant has failed to demonstrate that her dismissal was on the grounds of pregnancy and, therefore, her claim in this regard is not upheld.

Unfair Dismissal

Pregnancy

Probation