ADJ-00018062

Complainant

Respondent

Anonymised Parties

Waitress

Restaurant

Representatives

  Self-represented

Niamh ReganRegan 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-00023235-001

15/11/2018

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

CA-00023235-002

15/11/2018

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

CA-00023235-003

15/11/2018

The complainant commenced employment with the respondent on 5/7/2017.

She worked 20 hours a week for which she was paid €10 an hour. She states that she was dismissed due to her pregnancy on 5 July 2017.

Her complaint form identified that she had not received her holiday entitlement, nor had she been provided with her statutory notice.   

She submitted her complaints to the WRC on 15 November 2018.

She is seeking compensation.

CA-00023235-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

 The complainant took one day's sick leave on Saturday 30th of June. She had a couple of drinks the previous night and was feeling unwell after 2 drinks. She was about seven weeks pregnant at the time. She had advised the manager, Mr A, of her pregnancy at around the same time. The complainant works with food and could not go to work while feeling unwell.

 After that Saturday she expected to be rostered. The roster was not sent to her the following Wednesday, which was the usual practice. She phoned her manager Mr A. She found it hard to get him by phone, and he texted the complainant to come around for a chat. She met with him on Wednesday 4 July and he told her that he hears lots of excuses for absences from work. The complainant reminded the manager that she had a good attendance record. He had been aware of her pregnancy. At the end of that meeting he told the complainant to wait and that she would be on the next roster. The complainant did not receive the roster the following week. By now, the 11 July, she had gone for two weeks without any work hours. She phoned the manager to ask why she had not been rostered. He told her that he had let her go. He said that the business was not doing well, and they were letting some staff members go. New staff had been taken on when she commenced employment and more recently. Since her departure, more staff have been taken on to work in the restaurant.

There was a previous occasion, two to three months into her employment, when she had been asked to go home and address personal hygiene issues. She did and returned to work 20 minutes later.

Six weeks before her employment ended her hours were reduced. Her hours fluctuated.

The respondent sent her P45 to her only in September. She informed the manager of her intention to make a complaint.

 The owner of the restaurant telephoned the complainant subsequently emphasising that he didn't know that she was pregnant. However, the manager did know that she was pregnant because she had told him. The owner did not offer the job back to her.

Mitigation.

The complainant advised that she had applied for 3 positions in July 2018. She has not secured an alternative position. She had been very stressed.

CA-00023235-002.Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant withdrew this complaint.

CA-00023235-003 Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant withdrew this complaint.

CA-00023235-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

 The respondent denies that the complainant was dismissed due to her pregnancy. The respondent was unaware of the complainant’s pregnancy. The complainant did not advise the director of the company of her pregnancy at the earliest opportunity contrary to the requirements set out in her contract which she signed on the 5/10/18. Not only was he unaware but it is not the reason for the dismissal. Even if it is found that the respondent was aware of the pregnancy, which is denied, it was not the reason for the dismissal. The respondent’s defence is that there was history of difficulties with the complainant. She was sent home on a number of occasions for being unkempt and not in a fit condition to work.

The respondent director, Mr. E advised that on the 30th June she did not ring in the morning, as required, to tell the respondent that she was unfit to work but made the call to the duty manager only 20 minutes before the evening shift was due to begin. The 30 June was a very busy day for the restaurant as the Gay Pride March took place on that date, in the vicinity of the restaurant, and double the usual takings of €4000 was expected. This gave the respondent no time to engage a replacement. The complainant did not state in her call that the illness was pregnancy- related but rather was alcohol- related.

Mr E was reducing staff in the restaurant at the time due to a 25% downturn in business brought about by building work in the compound which complicated access to the building. The building work had gone on for 7 months and not 7 weeks as previously indicated. Having experienced the complainant as unreliable, he decided to terminate her employment and, additionally, she was only working an average of 13  hours a week.

There had been issues with her attendance during the course of her employment.

The decision to dismiss the complaianat was made on the basis that she was unreliable and for no other resason. The respondent  has employed hundreds of individuals , many of them have been pregnant women.

The respondent stated that he did not use the disciplinary provess at any stage during her employment as he has a business to run and it would take time.

The respondent states that the complaint is an attempt to circumvent the legislation.

CA-00023235-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Iam required to establish if the dismissal was pregnancy related and entitled to the protection of section 6(2)(f) of the Unfair Dismissals Acts 1977-2015, a provision which extends jurisdiction to complainants with less than 12 months service. The complainant has less than 12 months service.

The burden of proof lies with the employer to prove on the balance of probabilities that the dismissal was unrelated to her pregnancy.

The respondent director in attendance at the hearing denies that he was aware of the pregnancy. The respondent did not dispute that she had advised the manager, Mr. A. Mr A who had an involvement leading to the termination of the complainant’s employment did not attend the hearing to rebut the complainant’s statement contained in the complaint form that she advised the manager of her pregnancy. It is unlikely that the manager- if on notice of her pregnancy -would not have discussed this with the respondent director. The manager, Mr. A, took two weeks to come back to her to advise that he was letting her go. He cited a downturn in the business as the reason for her dismissal.

The complainant was not advised of the proposed dismissal before it took effect nor of the right to representation or of appeal.

ADJ decision 00002143 considered a complaint of unfair dismissal on grounds of pregnancy where there was a conflict of evidence as in the instant case concerning the respondent’s knowledge of the pregnancy. The totality of the evidence led the adjudicator to conclude that the respondent had knowledge of the pregnancy. Also, in the instant complaint, the steep jump from chastising the complainant about personal hygiene matters to dismissal, without any intervening steps, the failure of the manager to attend and rebut the assertion that the complainant advised him of the pregnancy, the differing grounds given for her dismissal tend on balance to the conclusion that the respondent was on notice of the pregnancy.

 In O’Brien v Thomas Kiely t/a Thomas Kiely Catering UD 325/2013, the tribunal examined the case of a catering assistant let go because of the poor financial circumstances of the respondent company who selected her rather than another catering assistant. The complainant argued that her dismissal was pregnancy related. The EAT concluded that the respondent informed the complainant early on in her employment of the threats to the financial viability of the company and that the respondent had brought forward sufficient evidence to displace the statutory presumption set out in the Unfair Dismissals Acts, 1977-2015 by the Maternity Protection Act, 1994, that the termination of her employment was due to her pregnancy. Of particular interest to the tribunal was the supply of evidence concerning the precariousness of the company and prior to notification of her pregnancy. No evidence was advanced at the hearing into the instant complaint to indicate that the complainant had been put on notice of the loss of income to the respondent and any consequential risk to her job prior to her dismissal.

 I accept that there were difficulties with the complainant. But the totality of the evidence on the balance of probabilities fails to convince that the dismissal was unconnected to her pregnancy. Section 6 (2) of the Act of 1977 renders a dismissal to be unfair if it results “wholly or mainly” from the pregnancy of the employee.

On the basis of the evidence I accept that the dismissal occurred mainly because of her pregnancy

Loss

Between July 2018 and January 2019, the period of her loss, the complainant applied for 3 positions. As such her efforts to mitigate her loss were seriously inadequate.

I decide that the respondent should pay the sum of €1,250 to the complainant.

CA-00023235-002.Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.  

The complainant withdrew this complaint.

CA-00023235-003 Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant withdrew this complaint.

CA-00023235-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I decide that the complaint is well founded. I decide that the respondent should pay redress of €1,250 to the complainant.

CA-00023235-002.Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant withdrew this complaint.

CA-00023235-003 Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant withdrew this complaint.

Unfair dismissal; pregnancy related.