Complainant

Respondent

Anonymised Parties

A Store Manager

A provider of pet products

Representatives

McKeever Taylor Solicitors

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-00019515-001

31/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019515-003

31/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00020594-001

04/07/2018

The complainant has submitted a claim against the respondent under Section 8 of the Unfair Dismissals Act, 1977 on the 31st of May 2018 and thus the cognisable period for this claim dates from the 1st of December 2017 to the 31st of May 2018. She has also submitted claims under section 27 of the Organisation of Working Time Act, 1997 on the 31st of May 2018 and on the 4th of July 2018. The cognisable period for the claim submitted on the 4th of July 2018 dates from the 5th of January 2018.   I proceed to a hearing of these matter on the 11th of February 2019. This claim was heard along with other claims submitted by the complainant under Adj-00016233.

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

CA-00019515-001

31/05/2018

The complainant submits s that

She commenced employment with the respondent on the 19th of March 2017,

She was unfairly dismissed by the respondent on the 16th of February 2018 with an effective date of the 26th of February 2018.

The respondent submits that

The complainant was dismissed on the 16th of February 2018 following issues with her performance,

The complainant’s performance issues were discussed with her in January 2018 and it was decided to give it another four weeks to see if her performance improved.

Section 2 of the Unfair Dismissals Act states

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…..

The complainant advised the hearing that she commenced employment with the respondent on the 19th of March 2017 and that she was unfairly dismissed by the respondent on the 16th of February 2018.

The Unfair dismissals Act provides that a claim in respect of an Unfair Dismissal is subject to an employee being employed for a 12-month period. The respondent submits that the complainant does not have the required 12-months service and that this claim must fail.

The requirement of one year’s continuous service for pursuit of an Unfair dismissal claim does not apply where the dismissal results from:

a.an employee’s pregnancy, giving birth or breastfeeding or any matters connected therewith

The complainant in this case submits that she was dismissed due to her having notified the respondent that she was pregnant.   The complainant advised the hearing that she had told the respondent in a phone call on 13th of February that she was pregnant and that she received a letter terminating her employment dated 16th of February 2018.   The complainant was out on 2 weeks sick leave at the time following a workplace accident which took place on the 10th of February 2018.

The respondent advised the hearing that the complainant’s dismissal was due to performance issues of which the complainant was aware and that the respondent was not aware that the complainant was pregnant at the time of her dismissal. The respondent went on to state that issues had arisen with the complainant’s performance and these issues were discussed with the complainant in a meeting which took place on the 9th of January 2018. The respondent told the hearing that the complainant at this meeting had suggested that they wait four weeks to see how things worked out. Both parties had at the time agreed that weekly meetings would be held every Monday. The complainant agreed that this was the case. The complainant told the hearing that she had injured her knee at work on the 10th of February 2018 following which she went out on two weeks sick leave as she was unable to bend or kneel on her knee and was required to wear a brace on her knee for support.

The respondent told the hearing that they discovered that the complainant had during this period of sick leave gone to Paris with her husband overnight on the 14th of February to 15th of February while out on sick leave due to a knee injury.   The complainant told the hearing that she was wearing a knee brace and was unable to bend or kneel but that she was able to walk and stand and so was able to travel to Paris at that time.

The complainant advised the hearing that she had undergone an MRI on her knee on the 12th or 13th of February 2018 following injuring her knee at work on the 10th of February. She stated that prior to undergoing the MRI she was asked if she might be pregnant.     The complainant told the hearing that she had at that stage advised the doctor that she had taken two pregnancy tests and that one was positive, and one was negative. The complainant on the first day of hearing stated that she was not sure that that she was pregnant at that stage as it was very early days and she had done two tests one of which had turned out positive and one of which had turned out negative.   She told the hearing that her baby was born on the 9th of November 2018.   The complainant on the second day of hearing stated that she had thought she might be pregnant on the day of the MRI and that she had advised the doctor carrying out the MRI of this possibility at that time, the complainant produced the record of the MRI to the hearing. This record of the MRI did have a handwritten note on it which was very difficult to read but appeared to state that the complainant had indicated to doctors that she had taken a pregnancy test but was happy to go ahead with the MRI. The complainant at the first hearing stated that this took place on the 13th of February but on the second day of hearing clarified that she had the MRI on the 12th of February.

The complainant advised the hearing that she had received a bunch of flowers from Mrs. A of the respondent on the 13th of February 2018 along with a card saying, “get well soon”. The complainant stated that the flowers were white lilies which she did not like and which she thought looked more like a funeral bouquet. The complainant stated that on receipt of the flowers she phoned Mrs. A and stated that the flowers would look better in the respondent’s shop than in the complainant’s home.  She stated that she returned the flowers to the respondent at her work premises.

The complainant on the first day of hearing advised the hearing that she was dismissed due to the fact that she told the respondent that she needed time off for her family and that she had told the respondent that she might be pregnant and also that it was due to her workplace accident. She added that she was dismissed due to the fact that she had told Mrs. A that she was trying to conceive.

The complainant advised the hearing that her pregnancy was confirmed on the 21st of February 2018 following a visit to her GP and that her baby was born on the 9th of November 2018.

The complainant also submits that she advised her boss Mrs. A on the phone on 13th of February 2018 that she was pregnant and that she was dismissed on the 16th of February 2018.     The complainant on the second day pf hearing stated that she had told Mrs. A in a phone conversation of the 13th of February that she was pregnant and almost sure of it.

Mrs. A disputes this and stated that the complainant had not told her that she was pregnant and that she was not aware of her pregnancy at the time of the dismissal. Mrs. A told the hearing that she and the complainant had a conversation back in January where the complainant told her that she had been told by a doctor that if she was considering trying for another baby now was the time to do so, and that Mrs. A had said that she thought she would be mad to want to go back to the nappy stage again as her other two children were grown up now.   Both parties agree that this conversation took place in January 2018.

The respondent Mrs. A advised the hearing that the complainant was dismissed due to ongoing performance issues and specifically for the following reasons:

Not reaching targets, not doing jobs as requested, ignoring emails and not performing the requirements of manager.

The complainant told the hearing that she was not surprised to be dismissed by the respondent she stated that the respondent had often threatened to dismiss her and had told her she would be getting her p45 sooner than she thinks if she did not do as she was told.  The complainant stated that this related to a specific incident which had taken place in November 2017 where the complainant had told the respondent that she would not recommend the respondents own brand product to customers in place of other brands as she did not agree that it was the best product for customers and she stated that she would not tell lies to customers.   The complainant told the hearing that she was also threatened with being given her p45 back in November 2017 after she had told the respondent that she needed to reduce her working hours as she was answering emails on her days off and after work hours which she should not have to do. The respondent had also raised issues in respect of the complainant having made mistakes in orders and over ordering stock and also in not processing orders to suppliers on time thus putting suppliers under pressure.   The respondent stated that the complainant had refused to follow instructions regarding promotional material which the respondent requested she display in the shop as the complainant had stated that she did not wish to display the items as her husband had expressed the view that they were ‘tacky’. The respondent also told the hearing that the complainant had regularly overspent on wages while managing the shop as she had paid extra wages to other employees to cash up at closing time when she as the manager should have been doing it.     The complainant told the hearing that the respondent Mrs. A had told her in January 2018 “you are a waste of wages and payroll” and that Mrs. A had stated that she did not need the complainant anymore as she could delegate tasks herself.

In considering whether I am satisfied that the complainant had advised the respondent about her pregnancy prior to her dismissal I note that the complainant told the hearing that she had at the time taken two pregnancy tests one of which had turned out positive and one of which was negative. The complainant had her baby on the 9th of November 2018 thus the complainant could only have been a few weeks pregnant at that stage given the date of birth of her child and it would be unusual for a person to notify their employer of a pregnancy at such an early stage.

I also note that the complainant’s solicitor wrote to the respondent on the 5th of March 2018 regarding the complainant’s dismissal and requesting that the dismissal be rescinded. This letter did not mention that the complainant was pregnant at the time of her dismissal or at the date of the letter but referred to the complainant having worked in excess of her contractual hours and also referred to the injury she sustained in the workplace on the 10th of February 2018 which is attributed to the respondent not ensuring that the floor was properly washed and dried. This letter made no reference whatsoever to a pregnancy or to any alleged unfair treatment due to pregnancy. This letter did not cite pregnancy as the reason for dismissal and made no mention of pregnancy whatsoever.   I must also bear in mind that it is not a discriminatory dismissal which is at issue here this is an Unfair dismissal claim where the complainant is asserting that the 12-month service requirement for an Unfair Dismissal does not apply to her as her dismissal resulted from her pregnancy.

Having regard to the totality of the evidence adduced I am satisfied on balance of probabilities that the complainant’s dismissal was not due to her pregnancy and that she was dismissed by the respondent for reasons which were unrelated to pregnancy.

Accordingly given that the complainant was employed by the respondent for less than the required 12-month period she is not entitled to pursue a claim under the Unfair Dismissals Act and this claim fails.

I find that the complainant does not have the required 12 months service for a complaint under the Unfair Dismissals Act and accordingly this claim fails.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019515-003

31/05/2018

The complainant submits   that

She was routinely expected to work 60+ hours per week,

on 30 November 2017 she noted that the Respondent would generate reports on Tuesday nights and email them to the Complainant for correction before midday each Wednesday even though the Complainant was not contracted to work on Wednesdays or Sundays.

the Complainant tried to be flexible even offering to work Wednesdays once she had another day off in the week,

the Respondent was not happy with this offer and further, asserted that the Complainant should work for some hours on Wednesday in addition to her already contracted hours.

The respondent submits that

The complainant worked an average of a 40-hour week during her employment.

The complainant advised the hearing that she was routinely expected to work 60+ hours per week.   The complainant in her original complaint form stated that she was required to work more than the weekly maximum number of hours. The reference period provided in the complainant form was December to February 2017 which the complainant later clarified in writing should have stated December to February 2018.

The complainant in her complaint form submits that on 30 November 2017 she noted the Respondent would generate reports on Tuesday nights and email them to the Complainant to correct before midday each Wednesday even though the Complainant is not contracted to work on Wednesdays or Sundays.     The Complainant submitted that she tried to be flexible even offering to work Wednesdays once she had another day off in the week but that the Respondent was not happy with this offer and further, asserted that the Complainant should work for some hours Wednesday in addition to her already contracted hours.

In considering this matter I note that this claim was submitted on the 31st of May 2019 and thus the cognisable 6-month period for this claim dates from the 1st of December 2017 to the 31st of May 2018.   The complainant submits that the reason for the delay was due to issues with her solicitor whom she submits did not follow her instructions. She was legally represented at the first hearing but not at the second day of hearing.  

The complainant at the hearing provided details of overtime worked by her from home when she was not rostered to work. She provided details of emails received and sent and followed up on by the complainant after working hours and on her days off.

The complainant quantified the time spent working on these emails during the cognisable period from 1st of December 2018 as amounting to 35.5 hours of overtime over a period of six weeks until her employment was terminated.      The respondent provided details of the weekly hours worked by the complainant.   The respondent stated that these weekly work hours were taken from timesheets submitted by the complainant herself. The complainant stated that the overtime hours were not included in these timesheets as they were hours she worked at home and at times when she was not rostered to work.

Section 15 of the Organisation of Working Time Act, 1997 provides as follows:

15(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

(aa) any period during which the employee was absent from work while on parental leave, force majeure leave or carer’s leave within the meaning of the Carer’s Leave Act, 2001,  

(b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

Having reviewed the records submitted I am satisfied on the balance of probabilities that the complainant did not work in excess of the weekly maximum number of hours permitted by the legislation. Accordingly, I declare that this complaint is not well founded.

I declare that this complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00020594-001

04/07/2018

The complainant submits s that

She is owed for Bank Holiday work and annual leave up to February 2018.

The respondent submits that

the complainant received all of her bank holiday and annual leave entitlements.

The complainant submits that she is owed for Bank Holidays and Annual leave up to February 2018. This claim was submitted on the 4th of July 2018. Thus, the cognisable period for the claim submitted on the 4th of July 2018 dates from the 5th of January 2018.

The claimant was dismissed on the 16th of February 2018 and in her evidence did not provide any details of which Bank Holidays she was owed for the period dating from 5th of January 2018 to her dismissal on the 16th of February 2018.

As regards the claim in respect of Annual Leave, Annual leave is accrued during an employee’s employment and accrued leave not taken falls due to be paid at the end of employment.

The Applicable Law

Section 19(1) of the Organisation of Working Time Act, 1997 provides as follows:

19.(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

The respondent provided records of the complainant’s annual leave entitlements and details of leave taken.

The complainants claim in relation to her annual leave entitlements appears to relate to work carried out by her during her holidays/annual leave in the form of unpaid overtime. The complaint does not appear to relate to a failure by the respondent to provide her with her statutory annual leave entitlements.

Having reviewed the records and documentation submitted I am satisfied on the balance of probabilities that the complainant did receive her annual leave entitlements. Accordingly, I declare that this complaint is not well founded.

I declare that this complaint is not well founded.