Complainant

Respondent

Parties

Jennifer McNally

Rose Marie Daly    

trading as RD Paedodontist

Representatives

Cathy McGrady BL, 

Nicole Warrilol Solr, 

Hennessy & Perrozzi Solicitors

Julia Leo BL 

Aisling Quilter Solr

O'Sullivan Quilter & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022115-001

24/09/2018

The Complainant and the Respondent were known to one another when the Respondent invited the Complainant to apply for a receptionist/office Manager position in a new practise the Respondent was setting up. The Employment lasted three months before it was terminated by the Respondent in May of 2018.

The Complainant says that she was not told and was therefore unaware that her failure to grasp all aspects of this position in such a short period of time (8 working weeks), was putting her position at risk. The Complainant says the Respondent reacted badly to the Complainant’s announcement that she was pregnant from the outset and that the relationship deteriorated as the Respondent was no longer minded investing time and effort in the Complainant’s development.

The Respondent cited poor performance as having given rise to the termination.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant herein is a highly motivated hard-working lady who came to work with the respondent with excellent experience and credentials. The Complainant had worked in retail Management and had a wide ranging and relevant skillset.

The Respondent was starting up a new and highly specialised dental practise focusing almost entirely on advanced dental care for children. The Respondent most certainly had a lot at stake both financially and professionally in this new venture. I fully understand that the Respondent needed to gather around her a team of workers who would generate goodwill and a strong reputation so as to ensure the survival of this enterprise. The Respondent was very careful in her selection of employees.

I note for example that one of the Practise Nurses GM that she engaged had a twelve-year background in dental surgery work and had operated at reception as well as in a clinical nursing capacity.

The Complainant it must be said had little or no experience in the type of environment that the Respondent was setting up. That said, the Complainant came with a most excellent and practical CV and there is nothing to suggest that she would not grasp the fundamentals of the receptionist position on offer. I do think that the email dated the 28th of January 2018 is significant as the Respondent clearly outlines an exciting and career enhancing opportunity for the Complainant to take up. There was to be a significant amount of training and certification that it was intended that the Complainant would be asked to take over the course of her time with the Respondent. This was to include travel to the UK. The offer of work as presented by the Respondent is all about:

“… learning and development opportunities open to you at this time should you choose to come and work with me.”

The Respondent to my mind was very keen to engage the Complainant (members of whose family she also knew well) and the Complainant was happy to join the team on the terms and conditions outlined in the Probationary Contract of Employment provided. In the Contract of Employment, the Complainant is described as an Assistant to the Principal Doctor though in reality the work would include managing the practise, operating the reception area, Administrative duties and communicating with and the scheduling of patients. I do not doubt that the Complainant was aware of the nature and extent of what her intended functions would be.

The Respondent accepted in the course of evidence that there was an inevitable bedding down period to be expected. To allow for this, the Respondent did not see any patients for a period of up to 8 weeks as she prepared her new premises and brought in her new team of employees. A number of third-party service providers (shredders, phone and internet providers etc.) were also engaged and consulted with in the run up to the opening due to happen on the 22nd of March 2018.

The Complainant commenced her employment on or about the 26th of February 2018 and she agreed that she had quite a lot of training over the next four weeks and before she had to start dealing with patients and consultations. The Complainant confirmed there was some days training on the software systems in operation and some days on practise compliance and that there were days on in-house training and role-playing exercises. There can be no doubt that the Respondent had a very exacting and particular standard that she wanted the staff to attain and I accept that this was not an unreasonable expectation as she believed every interaction with her practise might be the difference between gaining or losing a client. Early on, the Respondent noted that the Complainant’s telephone skills were not as good as she would have liked them to be. For example, the Respondent disliked the use of the word slang “yis” when inviting people to attend the clinic. A Co-employee GM noted that the Complainant did not seem particularly comfortable with the role-playing exercise. In time it was hoped that the Complainant would get better at putting patients and the parents of patients at their ease and to some extent this could only really come when the Complainant was fully conversant with the range and types of services being offered in this very specialised practise.

By early March the Respondent was congratulating the Complainant on her efforts and in an e-mail, she said

“. I wanted to say well done and thanks for today. It’s lovely to hear all your fresh ideas and solutions. I really enjoy working with you…”

I have been asked to consider the tone and content of this text as evidence of a good working relationship between the parties. I would also be inclined to think that it is evidence also of the collaborative nature of the relationship in the early stages where it is clearly everyone’s ambition to ensure the practise is the best that it can be.

The Complainant said she was very happy with the new job and felt that she and the Respondent got on very well and worked well together. It was of course inevitable that there would be a change in this dynamic once the practise opened. The Respondent was less available to the Complainant in her new role when the doors formally opened on or about the 22nd of March 2018 as the Respondent’s specialised skill set meant she had to take her consultations and perform procedures with the clients.

The full enormity of being the practise manager in such a successful and busy practise can only have become obvious to the Complainant from the 26th of March onwards. In fact, it is clear that the Complainant was totally overwhelmed by the job once left to her own devices and within a week of the opening of the doors the Complainant had no compunction about saying this to the Respondent. There were insurance forms requiring attention. The Respondent appeared to understand that this was the case and set about making helpful notes and tips in ease of the Complainant and these are all dated in and around the 4th of April 2018. To my mind this was all done in a friendly and helpful way. It is worth noting that the Respondent repeatedly notes (and indeed stated in evidence several times) that this is a steep learning curve and that over time the Complainant will get better and better.

I accept that at the same time as the Practise was officially opened for business, that the Complainant went to the Respondent and explained that she was pregnant with a baby due in October. The Complainant says she was nervous telling her employer though I am not sure why this was. I accept that the Respondent’s reaction was appropriate and that she was generally happy for the Complainant. I also accept that in that initial conversation the Respondent simply stopped the Complainant making irrational promises about all that she could and would do whilst out on maternity leave as that point was still a long way off. The Respondent was simply pointing out that the course of any pregnancy is uncertain.

In any event the Complainant’s evidence is that the Respondent’s attitude changed towards her and from this point on there was a definite coolness.

What is abundantly clear from the evidence provided by both parties is that there were ongoing operational issues which were proving catastrophic to the Respondent. The IT system was crashing with the loss of the Respondent’s details, files and notes on clients she was meeting with. This was absolutely not the fault of the Complainant. I think it was most unfair of the IT specialist upon whom the Respondent relied to have implicated the Complainant in some nebulous way. The Complainant was not an IT specialist and never claimed to be one. I appreciate that it was very frustrating and worrying for the Respondent to be faced with this problem but to have been persuaded by her (presumably paid for) expert to put it over on the Complainant was unfair.

Other issues arose which were vexatious to the Respondent. The Respondent was finding the complainant to be slow with her work and tardy getting back to her and other people. This slowness was particularly damaging in the area of dental referrals – where dental colleagues had referred their young patients on to the Respondent for that specialised care that she provided. The expectation was that the referral would be immediately acknowledged (to the referring party) and the proposed patients’ guardian would be contacted immediately. I accept this is a very important source of income for the practise.

The Complainant said this was a detailed process which couldn’t be achieved in five minutes as a significant amount of detail taken over the phone had to be inputted into the system in order that the proposed patient’s access to the services provided could be processed. It was taking the Complainant well over fifteen minutes to get through each referral.

The Complainant went back to her employer once again on about the 12th of April raising a concern that she was falling behind, and unable to handle the workload. She described herself as having to juggle the front desk, input the information as well as trying to communicate with service providers to fix the internet and phone problems. I accept that the Complainant formed the impression that her Employer was frustrated by this apparent ineptitude. I cannot be sure that the Respondent accused the complainant of having “baby brain” (and the employer denied this), thereby directly accusing her of failing in her job by reason of her pregnancy. However, I am satisfied that the Respondent believed the Complainant to be distracted by what the Respondent described in evidence as an “unexpected pregnancy” and told her to leave her phone in her bag for the working day and by refusing to countenance overtime hours when she was of the firm belief that the Complainant should be able to get all her tasks done between 9 and 5.

The Complainant described herself as being uneasy in the workplace and fearful of asking for permission to attend for scans etc. The Complainant was diagnosed as Rhesus negative and knew this would mean more medical appointments than normal. However, the Complainant believed and hoped and repeatedly said in evidence that she fully expected that things would settle down in due course and she was prepared to work through what she perceived to be her employer’s displeasure.

I fully accept that the Respondent was regularly giving the Complainant guidance on her expectations as an employer. For example, the Respondent was concerned that the public nature of the Reception desk (with GDPR implications) meant that the Complainant had to be extra vigilant in keeping notes and letters out of the public eye. In fact, a re-configuration of the desk ultimately resolved this problem though the Respondent did say there continued to be document on display though she was challenged on the generality of this sweeping allegation. I have been shown the lists of things that the Employer intended to go through with the complainant on different days. Some of these issues are exclusively operational issues whilst some undoubtedly had the objective of improvements in the workplace performance. However, it is not clear on the evidence if any of these conversations were intended to be in the nature of performance reviews which could lead to the termination of employment. On balance I cannot find that they were. Even if any of these meetings were intended by the Respondent to be performance review meetings, this fact was not made known to the Complainant. I accept that the Complainant knew in the words of MsMcK, that she had to “get the finger out”, but she had no idea that her job was at risk because she had never been given any warning – verbal, written or otherwise – that her position was in jeopardy.   She said she was never told she was failing and never given a chance to improve. The Complainant stated that she was learning and that given time she believed she would get better.

In her evidence the Respondent dwelt on the fact that the Complainant had claimed that she could not get up to twenty referrals done in one day and that more of the week needed to be assigned to this task. The Respondent read this as an unwillingness on the Complainant’s part to work at a reasonable pace.

The last straw for the Respondent appeared to be her unexpected arrival back to the workplace in her week of annual leave and being greeted with the sight of the Complainant eating at the reception desk which was strictly forbidden regardless of whether it was just a breakfast bar or a full buffet.

The Respondent gave evidence that she understood that the Contractual probationary period operated as a period in which she could decide whether or not an employee relationship would be a “good fit”. The Respondent said in evidence that it must have been “obvious” to the Complainant that she was not meeting expectations in the workplace. The Respondent was continuously correcting her work and her typing and her spelling. The Respondent was disappointed with her phone manner. The Respondent was concerned about GDPR compliance and general disorganisation. In the course of the week that she was out of the workplace, the Respondent was coming to the realisation that this employment relationship was not working out. For the Respondent in any event.

The Respondent had to concede that the Complainant was not on formal notice that her job was at risk. This appear to stem from either a misunderstanding of what rights a probationary worker has or an assumption that the Complainant knew it was coming.

In any event the Complainant who had been out on a number of days of sick days was invited to meet with the Respondent on the morning of the 21st of May at which point the Respondent told the Complainant that there was “no easy way of saying it” and “it was not working out”. The employment was terminated. I accept that the reasons for the Dismissal were very unclear at this time and the Respondent appeared to rely on the generality of difficulties that she had been having with the Complainant’s performance in the lead up to the 21st of May. In fact, this amounted to about 8 weeks of work after the practise opened. The termination was confirmed in an email which never made its way to the Complainant, and which failed to set out the reasons for the dismissal.

On balance I am not attributing blame to the Complainant in relation to the alleged discovery of a referral folder and old voicemail messages which were allegedly unearthed after she had already been gone from the workplace. These were never mentioned to her at the time of her dismissal and she was never given any opportunity to review them or understand them. If they existed, they were not presented in the course of evidence.

I have been invited by the Respondent’s Counsel to accept that the dismissal arose solely as a result of the Complainant’s failure to meet expectations and a constant poor performance in the workplace. The Respondent must demonstrate that the dismissal is unconnected to the pregnancy. I was asked to consider that the Respondent was entitled to protect her own interests both professionally and financially. The Contract of employment provides for Maternity Leave and the Respondent knows what her obligations are in this regard. There is no evidence, I was told, of the Respondent allowing the fact of a pregnancy in any way being a factor in reaching her decision. I was invited to consider the case of McGuirk -v- Irish Garden Publisher Limited DEC-E/2007/031 as authority for the principal that an Employee’s poor work performance can give rise to the termination of the employment even where the employee is pregnant.

The Complainant has asked that I distinguish McGuirk where the history of poor performance was on notice (including the threat of termination) to the Complainant well in advance of the pregnancy being known to the employer.

In McGuirk the Equality officer sets out the position:

“It is well established ECJ jurisprudence that women who are pregnant are to be afforded special protection in employment and cannot be dismissed from the beginning of the pregnancy until the end of their maternity leave (the protected period) save in exceptional circumstances unrelated to their pregnancy. It is true that the Complainant’s dismissal took place during the protected period and it therefore falls to the Respondent to show that the termination of her employment was unconnected whatsoever with her pregnancy”

I must find on the balance of probabilities which version of events I find to be the more credible.

In the absence of any formal or acknowledged performance review and/or any Disciplinary process arising out of perceived failings in her work, it is difficult to see any justification for this abrupt dismissal. For the Complainant to succeed I must find that the fact of the pregnancy was a consideration for the Respondent. On balance I find this conclusion unavoidable. The only thing that changed from the Complainant being a person that the Respondent “really enjoyed working” with to not being a “good fit” was the announcement of the pregnancy. I am satisfied that the Complainant has made out her Prima Facie case and that the Respondent has been unable to set aside the strong inference that the Complainant’s pregnancy was a factor in her decision to terminate the employment. I am satisfied that the Respondent’s enthusiasm for teaching the Complainant and training up the Complainant and creating opportunity for the Complainant was greatly reduced when the Complainant announced her pregnancy. She was therefore subjected to less favourable treatment than a non-pregnant employee would have been. In the absence of any exceptional circumstances I conclude that the Complainant has been discriminated against on the grounds of her being a pregnant woman and that this was a discriminatory dismissal.

In assessing remedy I have taken into account the cases of Fox -v- Lee and Anor EED36 and Von Colson -v- Land Nordrhein-Westfalen [1984] ECR 189

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

CA-00022115-001

I find the Complainant has been discriminated against on the ground of her Gender. I accordingly award the sum of €15,000.00 compensation.