Complainant

Respondent

Anonymised Parties

A Chef’s Assistant

A Restaurant

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-00013212-001

21/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00013212-002

21/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00013212-003

21/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013212-004

21/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00013212-006

21/08/2017

The complainant worked for the respondent between the 11th April 2016 and the 9th March 2017. She claims that she was dismissed when the respondent found out she was pregnant; the respondent denies the claim. As set out below, I have amended the name of the respondent to the limited company, who was the employer.

At the outset of the adjudication, the complainant pointed to pay slips she received during her employment. They give a name of an entity, which is neither the limited company or the owner.

The complainant outlined that she had not seen the letter from the Workplace Relations Commission of the 29th August 2017 regarding parallel complaints. Her solicitor had not informed her of the requirement to elect between complaints. She further did not receive the letter from the Workplace Relations Commission to explain what happened to her equality complaint.

In respect of the unfair dismissal claim, the complainant outlined that she started working for the respondent in March 2016 and worked three days a week. When it was busy, she worked four and five days. She worked both week days and weekends. In November or December 2016, she informed her manager she was pregnant. The manager then informed the owner that the complainant was expecting. The complainant was out sick for one in January and this was certified. Staff received their weekly roster via facebook and she was not given hours for the week of the 7th March 2017. She texted the owner to ask why she had no hours and he asked her to come in. They met on the 9th March 2017 and the owner said, “you know we have taken on new staff.” He also said that the restaurant was closing on Sundays and that she was being let go. The complainant was then five months pregnant and this was two weeks before she could go on maternity benefit. She was not given any warnings and was sacked on the spot.

The complainant said that the owner’s attitude changed after she had announced her pregnancy. He started asking the complainant to move her car when no other staff member was asked to do this. He advertised her job on facebook four weeks later, even after telling the complainant that there was no job.

The complainant said that the owner refused to sign a form for her maternity benefit application. The Department of Social Protection advised that she could go to the WRC. While the owner signed the bottom of the form, he never filled in the middle part.

The complainant outlined that on the 9th March, she also asked about holiday pay. She was paid €300 but owed a further €250. Staff clocked in biometrically and the owner refused to pay her for the full hours. She was paid for 72 hours and was due 83 hours.

The complainant outlined that she was to buy two trees for the owner and they agreed a price of €100. He never asked her for the money and deducted this without permission from her wages.

The complainant outlined that she was the only staff member who was pregnant and the only one let go. The respondent kept on weekend staff even though it closed on Sundays. The complainant outlined that after her dismissal from the respondent, she worked for four hours with a former employer. She did not get maternity benefit until three weeks before she was due.

In respect of the terms of employment claim, the complainant outlined that she did not receive a contract or written terms of employment. Her Maternity Protection Act claim related to being let go and having to move her car to the back car park. This occurred three times. She did the fruit delivery for the respondent and parked at the front. She was asked to move the car to the back and had to carry boxes of fruit at a time she was four months’ pregnant. In respect of the Minimum Notice claim, the complainant outlined that she never received notice of the termination of her employment.

The last payment the complainant received from the respondent was in April. She received the €300 for annual leave in January or February. In respect of the Payment of Wages claim, the complainant said that she is owed €250 in outstanding annual leave and was also owed a further €38 in unpaid wages.

In reply to the respondent, the complainant said that the manager had emailed the owner about her pregnancy and the owner’s wife wished her well. Staff knew she was pregnant. She had previously worked as a commis chef in named public houses. A colleague left and was not sacked. The complainant could have worked variable hours. She did not know what day the €38 in wages related to.

The complainant outlined that nearly all staff parked in the front and they work in the furniture part. She was asked to park round the back. Weekend student workers were kept on when she was let go. A student colleague left because of the way the complainant was treated. The complainant outlined that she was stressed during her pregnancy because she had been sacked.

In an opening submission, the respondent stated that the complaints were addressed against the wrong entity and that the adjudication had no jurisdiction. The complainant had not stated the proper name of the employer at a time she had legal advice.

The respondent outlined that the employment started on the 11th April 2016. The complainant worked 19 hours a week and was paid €9.50 an hour. The respondent changed from being a café to a restaurant. The complainant became redundant and was informed of this on the 10th March 2017. The respondent looked for a chef’s assistant in April 2017 and the complainant was not qualified. The owner was not aware of the complainant’s pregnancy until she brought him the maternity benefit form.

The respondent outlined that the complainant mainly worked on the floor and no chef was hired until February 2017. She helped in the kitchen. Following the restructuring, both the complainant and a colleague became redundant. The manager became a waitress and the chef asked that a qualified person be appointed to the kitchen. The respondent stated that there was nothing in writing about the dismissal.

The respondent submitted that there was no evidence as to what holiday pay the complainant was owed. She was paid 18 hours in 2016 and 8.2 hours for 2017. There was no evidence of what else is owed. She was paid for every hour clocked in and there was no evidence of how she is owed €38. In respect of the Terms of Employment claim, the respondent outlined that the manager had issued the complainant with a contract but did not have a copy of it. The respondent conceded the minimum notice claim.

In respect of the Maternity Protection claim, the owner was not aware of the complainant’s pregnancy. She first raised the maternity benefit issue on the 10th March and the owner was then made aware. The owner filled in the maternity benefit form, giving the number of months she had worked for the respondent. By then, the complainant no longer worked for the respondent. The owner was not aware of her pregnancy until after she was dismissed.

The respondent submitted that the Employment Equality complaint could not be heard. The complainant and other staff were asked to move her car when the place was busy. All staff knew that they were not meant to park in the front when it was busy.

The respondent submitted that it had given the reasons for the complainant’s redundancy and there was no evidence of her stress.

Before considering each complaint, there are several complicating factors in this case. The first is who is the proper respondent and the second is the complainant’s Employment Equality complaint. Each issue is addressed in turn.

At the outside of the adjudication, the complainant presented her pay slips. They present the employer as an entity that is neither the owner or the limited company. The complaints are made against the owner by name, who attended the adjudication. It was submitted by the owner that the complaints were incorrectly made against him when they should have been made against the limited company, the employer. I note, at this stage, that while the respondent stated a contract had been provided to the complainant, this was not presented to the adjudication. I note that section 3(1)(a) of the Terms of Employment (Information) Act require an employer to provide “the full names of the employer and the employee”. I have found below in CA-00013212-002 that, on the evidence, no such statement was provided to the complainant.

Having considered the evidence and submissions of the parties, I decide that the proper respondent is the limited company and that I have jurisdiction to decide on these complaints. I make these decisions for the following reasons. First, I note the dicta of Hogan J. in O’Higgins v UCD and the Labour Court [2013] IEHC 431 (at paragraph 17) “In my judgment, the same principles apply by analogy to the present case. The proceedings were commenced within time and all relevant parties were duly served in the manner required by O. 106, r. 4. The motion paper and affidavits outlined with clarity the case the appellant wishes to make. Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). The matter could easily have been rectified by the making of an appropriate order amending the title to the proceedings. As in Re MJBCH, there was no overriding policy objective which ordained that proceedings of this kind should be nullified by reason of such essentially harmless error.”

Second, I also note the dicta of the Labour Court in Wach v Travelodge Management Ltd EDA 1511:

            “The decision of the High Court in County Louth VEC v Equality Tribunal[2009]             IEHC 370 is a seminal case on the question of when proceedings before a statutory             tribunal can be amended. In that case McGovern J set out the following principle of             law: -

If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.

The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: -

This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.”

Applying these dicta to the circumstances of the instant case, I note that it was always clear to all parties, including the respondent, that these are complaints from this employee, the complainant, against her employer, who is the limited company. There is no question of prejudice or surprise for the respondent. I also note that it would not have been clear to the complainant who her employer was because the pay slip referred to the wrong entity and she was not provided with a statement of her terms of employment.

In conclusion, I have amended the name of the respondent to the limited company.

The second issue relates to the complaint pursuant to the Employment Equality Act. By letter of the 29th August 2017, the Workplace Relations Commission wrote to the complainant’s solicitor to say that because both Unfair Dismissal and discriminatory dismissal claims had been lodged, section 101(4)(A) of the Employment Equality Act applied. The correspondence sets out that the Employment Equality complaint would be deemed to be withdrawn unless the complainant withdraws the Unfair Dismissal complaint. The complainant outlines that she was not informed of having to make this choice or of the importance of the letter.

This case illustrates the importance for solicitors and advocates to clearly demarcate elements of a claim. It is perfectly open for an employee to raise discrimination via the Employment Equality Act and pursue dismissal via the Unfair Dismissals Act. Where the employee asserts discriminatory dismissal, for example arising from pregnancy, they must opt between the two statutes. The statutory presumption in section 101(4)(A) is that the Unfair Dismissal claim proceeds and the Employment Equality complaint will close. It is also possible for the employee to pursue a case of discrimination and discriminatory dismissal via the Employment Equality Act, and the advantages this brings in terms of any award of redress.

The complainant’s solicitor did not reply to the Workplace Relations Commission’s letter of the 29th August 2017. The Employment Equality complaint was closed. The respondent submitted that this complaint could not now be heard. I note that the Employment Equality and Unfair Dismissal complaints both relate to her dismissal. It follows that I have no jurisdiction to hear the Employment Equality complaint.

CA-00013212-001

This is a complaint pursuant to the Unfair Dismissals Act. The complainant asserts that she was dismissed for pregnancy or connected matters. The respondent denies the claim and the owner’s evidence was that he was not aware the complainant was pregnant.

Section 6 of the Unfair Dismissals Act provides that a dismissal shall be deemed to be unfair if it resulted wholly or mainly from the “employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith.” Such a claimant is not required to have one year’s continuous service.

I note that the complainant did not inform her employer of her pregnancy in writing. Her evidence is that she mentioned it to her line manager, who, the complainant surmises, informed the owner in turn. The complainant outlines that she was then asked to park in a different location and asked to carry goods a greater distance. She outlines that in March 2017, the respondent removed her hours and subsequently advertised her role.   The respondent outlines that the complainant was not qualified to work in the kitchen as the respondent moved from being a café to a restaurant. It states that the chef insisted on having suitably qualified staff.

In assessing the evidence, I note that the complainant had worked for the respondent without any performance issues or questions about her qualification. I accept she told her line manager of her pregnancy and continued to work without issue. I am satisfied that the respondent became aware of the complainant’s pregnancy. It is striking that the complainant’s hours were reduced to zero, without any review of her qualifications or capability to do the role. There was no paperwork regarding the need for certain qualifications and no assessment of what skills the complainant had or did not have. Instead, the complainant was dismissed. The intervening event between the complainant working without issue and her subsequent loss of hours is her pregnancy. I find as fact that the complainant’s dismissal resulted wholly or mainly from her pregnancy. The claim of unfair dismissal is, therefore, well-founded.

In assessing redress, I note that the complainant could not avail of important statutory rights if her employment with the respondent had continued. Considering the loss incurred by the complainant, I award redress of €6,000.

CA-00013212-002

This is a complaint pursuant to the Terms of Employment (Information) Act. Having considered the evidence, I find that the respondent did not provide the complainant with a statement of the terms of her employment as required by section 3. I reach this finding because the statement was not exhibited, and no evidence provided of when it was given to the complainant. The complainant gave cogent evidence of not getting the statement. A breach of section 3 is a subsisting contravention during the complainant’s employment. I award redress of €722, equivalent to four weeks wages.

CA-00013212-003

This is a complaint pursuant to the Maternity Protection Act. Having considered the evidence, I find that the complaint pursuant to the Maternity Protection Act is not well-founded. The matter of car parking is not within the ambit of the Act. The complainant had not notified the respondent in writing of her intention to take maternity leave or for time off for ante-natal care or to attend an ante-natal class. The circumstances surrounding the dismissal are addressed in CA-00013212-001.

CA-00013212-004

This is a complaint pursuant to the Minimum Notice & Terms of Employment Act. The respondent conceded this claim. The complainant was paid €9.50 per hour and worked 19 hours per week. She was entitled to one week of notice pay and is, therefore, entitled to redress of €180.50.

CA-00013212-006

This is a complaint pursuant to the Payment of Wages Act. Having considered the evidence, I find that the complainant is entitled to redress of €250 for the outstanding holiday pay. The complainant was unable to say when the outstanding wages related to, so I find that this element of the complaint is not well founded.

CA-00013212-001

For the reasons set out above, the complaint pursuant to the Unfair Dismissals Act is well founded and I award redress of €6,000.

CA-00013212-002

The complaint pursuant to the Terms of Employment (Information) Act is well founded and I award redress of €722.

CA-00013212-003

The complaint pursuant to the Maternity Protection Act is not well founded.

CA-00013212-004

The complaint pursuant to the Minimum Notice & Terms of Employment Act is well founded and I award redress of €180.50.

CA-00013212-006

The complaint pursuant to the Payment of Wages Act is, in part, well founded and I award redress of €250.

Amending the name of the respondent

Parallel claims / Section 101(4)(a) of the Employment Equality Act

Dismissal wholly or mainly arising for pregnancy

Unfair Dismissals Act