Complainant

Respondent

Anonymised Parties

A customer service representative

An online business

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-00022149-001

25/09/2018

The complainant asserts that she was dismissed by the respondent because of her pregnancy and there is reasonable cause for the late submission of the claim; the respondent asserts that it dismissed the complainant because of performance issues.

The complainant started employment with the respondent on the 19th April 2017 on a salary of €23,000. Her employment was terminated in October 2017. She informed the respondent of her pregnancy in August 2017 and due in March 2018. She submitted that per Dymnicka v Kylemore Foods Group Ltd (UD1033/2007) it was for the employer to show that the decision to dismiss was fair and not related to her pregnancy.

The complainant was an excellent and hardworking employee and referred to the May, June and September emails, which praised her customer service and her hitting targets. She scored in the high 90s in an appraisal a month before her dismissal. In the July appraisal, she had scored in the 70s and she had also addressed issues with grammar.

There was substantial evidence that the complainant was a consistent and hardworking employee. The respondent had not followed fair procedures. The complainant missed some work due to pregnancy-related illness. She was out on the 5th and 6th September and returned on the 9th but could not complete her shift due to illness. The following day her line manager rang to say that her employment was coming to an end.

The respondent never carried out a risk assessment. The work could be stressful, and this represented a hazard. There were fraud calls and last-minute changes requiring immediate attention.

The complainant outlined that there were six emails regarding her notes on the CRM, but this was a busy office where she dealt with several thousand calls. The respondent sent general emails between July and October and they were not directed at the complainant. This points to there being general issues.

The complainant outlined that it was unfair for the respondent to raise the swearing issue and she had not been able to respond to this specific charge. There was a general warning against using swear words and there was no charge levelled at her She was not given the opportunity to respond. This was not a fair procedure.

The complainant said that she had sought work after a couple of months of having her baby. She commented that the documentation obtained from the respondent via a data access request showed her in a less favourable light. She had told the respondent of her pregnancy before her annual leave in August. She had only been late on two occasions. She dealt with 40 calls or events per day and there were only issues with six CRM notes. On a couple of occasions, she did not have access to the relevant information to process refunds. She commented that a colleague was formally warning for swearing.

In respect of reasonable cause, the complainant referred to her hospitalisation during her pregnancy and her child’s subsequent hospitalisation. The data access request was made on the 19th October, showing her intention to take the case. There was good cause for the delay. It took seven months to get the file, which was received in April 2018. The complainant was not then fit to submit the complaint.

The respondent submitted that this was a customer service role, subject to a six-month probation. Issues arose in May and June 2017. The complainant was warned regarding time and attendance and smoking. There were further issues in August and September 2017 with language to drivers. She received a verbal warning. On the 28th September 2017, she was advised regarding negative behaviour. It was the ongoing poor performance that led to the complainant’s dismissal on the 17th October 2017.

The respondent refuted that there was a link between the dismissal and the complainant’s pregnancy. The respondent had sought to address the performance issues through informal warnings, emails and formal warnings. The poor performance continued after the complainant announced was pregnant. She had been absent on the 25th and 26th July at a time she was not pregnant. She was also warned about using an e-cigarette.

The complainant did not maintain a good level of performance and the respondent assessed both quality of work and administration, as well as behaviour and attitude. The scoring system was one aspect of her assessment. There was a pattern of lates and absences. The CRM involves the logging of all calls, emails and tracking orders. All staff have a log in. The complainant’s role was to completes task. While the complainant quickly completed the on the job training, her performance deteriorated. There was informal discussion regarding updating notes and no one else had this problem. The group emails were sent to update on policy. The scoring system was new and did not include an assessment of performance on the CRM. The scoring did not lead to the complainant’s dismissal.

The respondent submitted that the complainant completed her training in April 2017 and the email of the 8th May pointed to concerns regarding attention to detail. In July 2017 mistakes were addressed verbally. On the 11th July, it was established that there were no notes associated with a customer refund. The warnings of the 28th July related to attention to detail and attitude and this pattern continued into August. The respondent noted that on the 22nd August, the complainant made no outbound calls and had not logged calls. There were no notes on an order of the 23rd August. The complainant returned from annual leave on the 4th September and informed the respondent of her pregnancy. There was an issue with ordering on the 11th September and the complainant’s language was addressed by her line manager. A group email was then sent to all.

The line manager reviewed the complainant’s performance in October 2017. There were ongoing issues and the complainant had been given the opportunity to improve. The complainant was very good with customers, but this was only one part of performance. There were issues with attention to detail and attitude and the line manager decided not to approve the complainant’s probation. The respondent outlined that it had not initially thought to provide the scoring records with the data access information and provided this later with the emails.

The respondent submitted that the complainant’s dismissal was not wholly or mainly due to her pregnancy and was based on her competence and performance. The respondent had sought to address the performance issues and had not rushed to dismiss on this basis. While the complainant was good at customer service, she was dismissed because of her conduct and performance. The respondent referred to ADJ 7110. The first data access request was made in October 2017, with follow-up correspondence on the 14th November and the 21st December. All records were released on the 23rd April 2018, as required by the Data Protection Commissioner.

The line manager outlined that the complainant told her in the workplace kitchen that she was pregnant. They hugged at this good news. The line manager said that she would find out about the respondent maternity policy. The line manager accepted that the drivers were colleagues, and everyone had a good relationship. She would not describe swearing as banter and this was not professional in an office environment. The drivers have never sworn to her. She wanted to address the swearing at a group level to communicate that it was not tolerated. It was black and white that the swearing happened, and each incident was addressed there and then.

The respondent accepted that a risk assessment was not carried out. The complainant never said she was sick. The line manager said that she had no notes related to her assessment of someone’s probation. Her file had the emails, including the good and bad as well as the contract of employment. The line manager said she consulted with two senior managers regarding approving the complainant’s probation. It was not a factor that the complainant was sick the days before she was informed that her employment was coming to an end.

The respondent dismissed the complainant in her last week of probation. She was entitled to one week’s notice and it would be normal, because of time pressures, to inform an employee of this by phone. The respondent decided that the complainant had not passed the probation and this decision was not for review or appeal. The respondent outlined that they understood and appreciated the reasons for the delay in bringing this complaint to the Workplace Relations Commission.

The complainant’s employment commenced on the 19th April 2017 and ended on the 17th October 2017. The complainant informed the respondent of her pregnancy in late August and refers to documentary evidence of her performance in work. She asserts that she was dismissed because of her pregnancy. The respondent denies the claim and asserts that the dismissal was wholly or mainly due to performance issues.

The date of dismissal is the 17th October 2017; the complaint was referred to the Workplace Relations Commission on the 25th September 2018. This is considerably later than the six-month limitation period provided by the Unfair Dismissals Act, but within the extended period of 12 months. The respondent accepted the explanation of reasonable cause provided by the complainant, in particular her and her child’s attendances to hospital.

Section 8(2) of the Unfair Dismissals Act requires that “the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) [six months] was prevented due to reasonable cause.” The case law states that the greater the delay, the greater the explanation must be. In the six months following her dismissal, there was extensive correspondence between the parties regarding the data access request. Any delay or omission in providing this documentation did not prevent the lodging of the WRC complaint. It also demonstrates that the complainant could have submitted the complaint within time. While I fully accept and appreciate that the complainant gave birth in this time and both she and her baby attended hospital, this is not sufficient for a finding that this prevented the complaint being lodged until the last week of September 2018. I am, therefore, compelled to find that I am not satisfied the complainant has shown reasonable cause.

CA-00022149-001

For the reasons set out in this decision, I find that the complainant has not shown reasonable cause required by section 8(2)(b) of the Unfair Dismissals Act and I do not, therefore, have jurisdiction to hear the complaint and I deem it not well-founded.

Unfair Dismissals Act / reasonable cause