Complainant

Respondent

Anonymised Parties

A Deputy General Manager

A Hotel

Representatives

Úna Glazier-Farmer B.L. instructed by Leahy Reidy Solicitors

Kate O'Shea Solutions

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-00022955-001

31/10/2018

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

CA-00022955-002

31/10/2018

The Complainant started her employment with the Respondent on 6th November 2017.

She contends that she was dismissed on 20th September 2018 because she was pregnant. She also claims that she was not paid her holiday entitlements on cessation of employment.

She referred her claims to the Director General of the WRC on 31st October 2018.

Both parties provided written submissions and gave an extensive evidence during the two days of the adjudication hearing.

Prior to the hearing the Responded submitted a jurisdictional objection in relation to the complaint under the Unfair Dismissals Act.

The Respondent argues that the Complainant started her employment with the Respondent on 6th November 2017 and her employment ceased on 20th September 2018. The Respondent relies on Section 2(1)(a) of the Act and argues that the Act does not apply to an employee who, at the date of the dismissal had less than one year’s continuous service with the employer who dismissed him.

The Complainant argues that her dismissal results wholly from her pregnancy. Thereby, this claim falls under section 6(2)(f) of the Unfair Dismissals Act 1977. The Respondent is on full proof of each and every element of this claim. Therefore, the Respondent's objection has no merit.

In respect of the preliminary matter raised by the Respondent, the Unfair Dismissals Act stipulates:

“2. Exclusions

(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,

Section 6 Unfair dismissal … (2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: … (f) the employee's pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,”

The Complainant argues that her dismissal resulted wholly from her pregnancy and, therefore, the exclusion in terms of the requirement to have one year’s service does not apply. I find that special eligibility rules apply to unfair dismissal claims in cases of pregnancy. An employee who is dismissed by reason, inter alia, of her pregnancy is exempted from the requirement to have one year’s continuous service with their employer in order to qualify under the Act. However, the burden of proving that her dismissal is ‘wholly or mainly’ as a result of her pregnancy rests on the Complainant in such a case under the Act.

The Complainant submits as follows:

The timeline in this case demonstrates the very clear decision on the part of the Respondent to dismiss the Complainant as soon as she advised of her pregnancy. A hurried decision was made without any regard for fair procedures, the Respondent's own Disciplinary Procedure or consideration of the health and welfare of the Complainant.

To her great distress the Complainant suffered from a miscarriage in late December 2018 and the Complainant argues that the Respondent's decision to dismiss her without merit and as a result of her pregnancy negatively contributed to her situation.

Chronology of the events

6th November 2017 – the Complainant commenced employment with the Respondent as Deputy General Manager.

8th December 2017 — the Respondent's hotel opened after extensive refurbishment.

29th March 2018 — the Complainant received a very positive performance review.

29th June 2018 — the General Manager (GM) left and the Complainant was promoted to Acting General Manager.

From July 2018 Complainant also assumed the role of Bar Manager and Restaurant & Beverage Manager in addition to her duties as Acting General Manager and Deputy General Manager due to difficulties recruiting staff. It is worth noting that at this time, the Complainant was responsible for labour costs and expenses and it was the first month that a profit was made with costs (labour and expenses) at a record low.

31st July 2018 — new General Manager (PO) appointed.

14th August 2018 — the Complainant left work on sick leave due to exhaustion.

27th August 2018 — the Complainant returned to work. She was advised by the GM that he had removed roster duties from her and to keep staff contact to a minimum without further explanation. She had an informal conversation with PO regarding cleaning of the keg room.

4th September 2018 — the Complainant had an informal chat with HR Consultant, AB as to how she was getting on with PO. Following this chat, they both met with PO to discuss the Complainant's job description. The Complainant sought guidance and direction from PO regarding her role.

12th September 2018 - the Complainant informed PO that she was pregnant. She presented a letter from her General Practitioner advising she ought to be put on lighter duties.

17th September 2018 - the Complainant received a letter from PO inviting her to a disciplinary meeting on 19th September 2018. This was a very brief letter which simply stated that he was concerned about areas of her performance "especially in relation to Health and Safety, labour costings and team morale. " It should be noted that there were no terms of reference, no evidence, no policies referred to or enclosed nor was there a warning that the Complainant was at risk of having her employment terminated summarily.

19th September 2018 – the Complainant attended the meeting with a work colleague, EL, and met PO and AB. Again, no evidence or reference to specific policy violations were presented to the Complainant. There were several references made to the cleaning of the keg room. This came despite written advice from the Complainant's General Practitioner that she be assigned to lighter duties. The meeting was adjourned until the next day to allow the Respondent to make a decision.

20th September 2018 – the Complainant returned to what appears to have been an outcome meeting with the same individuals as the day before, PO and AB. PO read a letter which concluded with the decision to dismiss the Complainant from her employment on the grounds of "gross misconduct" and "capability to do her job". Of importance to note is that the Complainant passed her probation and had never received a warning from the Respondent. Further proof that the rushed decision to dismiss her was entirely on the basis of her pregnancy. 21st September 2018 — a letter from PO confirming her dismissal. It was only with this letter that the minutes of the previous two meetings with PO and AB were provided to the Complainant. 28th September 2018 - the Complainant sent a letter appealing the decision to dismiss her to CH, a third party. Despite the Respondent's disciplinary policy stating that if an appeal was to go to a third party it would be "an agreed independent 3rd party", at no stage was the Complainant asked nor did she consent to: a) CH hearing her appeal and b) her personal sensitive data being shared with a third party. It is also noted that CH was not an "independent" third party as he is on record for the Respondent as the Project Manager and responsible for recruitment for the Respondent. 10th October 2018 — the Complainant met with CH.

18th October 2018 — CH wrote to the Complainant stating he upheld the decision to dismiss her.

16th November 2018 — Complainant received her P45.

Conclusion

The facts of this case speak for themselves. The decision to dismiss the Complainant on unjustified grounds was made by senior management after being informed of her pregnancy. Furthermore, this decision is evident from the manner the sham disciplinary meeting took place without any regard for the significant workplace pressures the Complainant was under together with her personal circumstances.

The Respondent failed to apply fair procedures and follow its own Disciplinary Procedure through this process. Further evidence that it was a premediated decision to dismiss the Complainant at a very delicate time in the Complainant's life.

Redress

The Complaint has taken up alternative employment in a lower paid position of Bar Manager. This position was a step down from the role of Deputy Manager, a role which she worked hard for as acknowledged on numerous occasions in the meetings and subsequent letters by PO. Consequently, the Complainant seeks to be reinstated to her position of Deputy Manager with the Respondent together with back payment of her entire remuneration (including annual leave entitlement) from 20th September 2018 to the date of reinstatement.

The Complainant was in employment between 2nd November and 10th December 2018 when, sadly she suffered from a miscarriage.

Between February 2019 and the date of the second hearing (21st August 2019) the Complainant applied for some seven position. The Complainant argues that, as a result of the dismissal her claim for maternity benefit from the Department of Employment Affairs and Social Protection was disallowed.

Evidence of the Complainant

The Complainant submits that she had her first appraisal in March 2018 and was performing well, she received no negative feedback in respect of lack of experience. In April 2018, the Head Chef left and then, in the end of June 2018 the GM left. All responsibilities including dealing with the bar, kitchen, acting GM fell on her. The Complainant submits that in July 2018 the new GM was recruited and there were no issues raised. She claims that she dealt closely with CH (Project Manager and responsible for recruitment for the Respondent). She noted that he did not raise any issue with her performance. Rather, he told her that she could be considered at some stage for the role of the GM, and the time “acting” could be used as experience trial.

The Complainant acknowledged that an issue arose in relation to a bar staff member (DF) and she agreed to take a part in mediation. However, the mediation did not go ahead.

The Complainant acknowledged also that an issue in relation to the keg room occurred. She stated that she met with PO on 4th September 2018. She received a positive feedback in general and was told that if there was any action to be to be taken in respect of the keg room matter, she would be informed by 5th September 2018. There was no investigation into that matter and she heard nothing on 5th September 2018. She claims that she did not receive any notes, minutes or feedback in respect of the meeting.

The Complainant said that she informed the Respondent of her pregnancy on 12th September 2018. She inquired about a change in her shift pattern and requested to be assigned lighter duties.

The Complainant claims that on 17th September she was looking for something in the reception area and found a letter with her name on it. She was very surprised by the matters raised in the letter as

she knew nothing about any performance issues. The letter did not detail the allegations against

her, no disciplinary procedure was enclosed, she did not know that her job is at risk or that AB

would be in attendance. She asked EL, Front Office Manager to attend the meeting with her.

The Complainant claims that at the meeting on 19th September 2018, the incident of the keg room

was discussed. She noted that the room was cleaned in August and the matter was resolved. She was not provided with policy in respect of health & safety she allegedly breached. In respect of the labour costs, the Complainant asserted that these were creeping back up in September 2018. However, she was no longer responsible for same as she handed it back in August 2018 and played no part in rostering. Although she had some concerns, PO was the General Manager and she followed his lines.

In respect of staff morale, the Complainant claimed that nobody invoked the grievance procedure

against her and there were no complaints. She noted that, to help improve staff morale she suggested a staff party and tried to organise it but it did not go ahead.

The Complainant said that she put her heart and soul into her work and worked hard. She agreed

that she doesn’t know everything and doesn’t have much experience in running a bar but it was not

part of her job description and she took it over “by default”.

The Complainant submitted that she agreed to meet again on 20th September 2018. At the meeting the pre-prepared dismissal letter was read out. She never thought there was any issue except the keg room matter. It all seemed to happen all of a sudden and she was genuinely shocked.

On 21st September 2018 she received the dismissal letter and she appealed the decision on 28th

September 2018.

The Complainant argued that she did have some meetings with the Respondent but she was never

told they are job reviews or performance related. Rather she was told to attend them to get

support. There was no minutes taken, no notes kept. It was confirmed by the Respondent that no

minutes were furnished to the Complainant.

The Complainant submitted that after she had been dismissed, she requested her HR file and the

notes the Respondent now relies upon were not included. She claimed that the only records in her

HR file were her contract, appraisal from March 2018, annual leave details and letter informing of

pregnancy.

In cross-examination, the Complainant confirmed that she did assist the former GM in controlling

costs. He worked on the forecast, she would prepare the rosters. She noted that she was told not to

include agency workers in the labour costs details. She confirmed that on 23rd July 2018, the owner,

JL requested a meeting with management (some five managers) and he outlined his concerns in

respect of labour costs, staff morale and financial performance. The Complainant also agreed that CH and AB met with the management on 31st July 2018 and informed them that the management staff would have more one to one meetings with AB. The Complainant confirmed that she met with AB but she argued that these meetings were not job performance reviews. Rather, she claimed they were informal “chit chats”.

The Respondent put it to the Complainant that the minutes of the meetings were held in the GM’s

office and not HR. The Complainant reiterated that she has never seen any notes of the meetings.

She also said that she was never aware of any issues raised by the employee, DF in respect of his

rosters until she was asked to participate in mediation. She said that the rostering of the bar staff fell on her when the Bar Manager left in December.

She reiterated that the matter of labour costs was taken over by the new General Manager, PO.

The Respondent queried the Complainant about the matter of the keg room. The Complainant

confirmed that PO asked her to arrange return of kegs and she followed up with the relevant rep

but she went out sick some time later due to exhaustion. She confirmed that she was informed

about the mould in the keg room.

Evidence of Ms M, former HR staff within the Respondent

Ms M confirmed that the Complainant requested a copy of her HR file and she arranged delivery of same. She confirmed that the file included the Complainant’s contract, annual leave forms, appraisal form and the letter from her GP in relation to her pregnancy. Ms M confirmed that she had never seen the notes relied upon by the Respondent and she was not aware of a second, separate HR file being held in the GM’s office.

In cross-examination, the Respondent asked Ms M if she did not think that it would be appropriate to approach the GM in respect of the Complainant’s HR file. Ms M stated that she did not.

The Respondent submits as follows:

The Respondent refutes the claim and argues that the dismissal was fair and in line with the disciplinary procedure of the Respondent.  

The Respondent submits that the Complainant started her employment on 6th November 2017 as Deputy General Manager.

The reasons for dismissal stated were:

1.       Serious breach of Health & Safety standards

2.       Failure to perform the job function to a competent level.

The Respondent submits that the Complainant was a valued member of the management team and she is a very hard-working individual.

The Complainant’s General Manager (GM) at the outset of the business has since left the Respondent. After his departure it became apparent that the business needed to be managed effectively as costs were high and more revenue was required to ensure viability of the business. There was less than three-week period where the business operated without a General Manager (GM) but all of the management team were afforded the support and mentoring of a Hospitality Consultant and HR Consultant. A new GM was appointed on 31st July 2018.

Over the coming weeks it became apparent that there were concerning issues with the performance of the Complainant in relation to her fulfilment of her duties as Deputy GM. This is referenced in notes on Job Reviews that were held between the Complainant, the General Manager and AB (HR Consultant). The Respondent refers in particular to: Notes of Job Review dated 31st July 2018 with AB Notes of Job Review dated 14th August 2018 with AB Notes of Job Review during August 2018 with the General Manager, PO Notes of Job Review dated 4th September 2018 with the General Manager, PO and AB

The Respondent argues that these documents from the Complainant’s HR file show that the process of managing her performance had already commenced.

Job Review 31st July 2018: Staff morale, labour costs, standards Labour costs were running extremely high in the hotel. These were discussed on a weekly basis with the management team and specifically with the Complainant in her role as Deputy GM. It was highlighted on a weekly basis and the Complainant was fully aware that this was a vital part of her remit in her role. AM highlighted it to the Complainant on each of her job reviews and stressed the importance of same. It subsequently came to light that reports submitted did not include vital costs of agency chefs who were employed to support the business, resulting in obscured and inaccurate reports on labour costs.

Job Review 14th August 2018: Outlined to the Complainant the issues which DF has brought to the Respondent’s attention these being, victimisation, and not being treated fairly like other employees, especially in relation to hours of work.

Job Review August 2018: various duties not being completed.

Job Review 4th September 2018: staff morale, labour costs, health & safety issue in relation to stock room, ability to carry out the position of Deputy GM.

Job Review 4th September 2018 afternoon: Support offered to the Complainant by the GM and asked to start with emailing him in relation to three areas where she might need support and guidance. Unfortunately, initiative was not shown by the Complainant until in the disciplinary arena. The GM had the view that the Complainant had been offered support and assistance in relation to the areas she might not be experienced in and no initiative had been shown by her in order to develop in her role. In fact, the Complainant did not send the list that the GM had asked for until the morning of 2nd disciplinary meeting on 20th September 2018.

At this job review the Complainant’s job description was gone through for clarification and in particular:

·         To control wage to revenue in line with expectations

·         To review staff rotas, ensuring that they provide adequate cover in the most cost-effective manner

·         To assist all HODs with the control of stock levels in their departments and purchase of same

·         Ensuring a safe working and guest environment, to reduce the risk of injury and accidents

The Respondent contends that on commencement the new GM and the Complainant had a walk around of the premises. Various tasks were agreed to be undertaken, one discussed was that there were a number of out of date kegs on the premises and the GM asked that the Complainant return these as a matter of urgency. Unfortunately, this did not happen, and the Complainant did not arrange for this task to be undertaken. The kegs continued to be stored on the premises. Subsequently, the GM was checking the stock room and found that due to this task not being carried out there had been a serious breach of health and safety regulations. Mould from the out of date products had become air-borne and had grown on walls, floors and ceiling. The breach which caused serious concerns to the management was accepted by the Complainant as her responsibility. The Respondent would like to highlight that this serious breach occurred prior to the Complainant’s notification of her pregnancy. It was discussed at subsequent Job Reviews as a matter of huge concern. In fact, the Complainant herself expected that her actions in relation to the breach would result in disciplinary action when at the Job Review on 4th September 2018 the Complainant asks AB “if this would be a disciplinary action?”. It subsequently was one of the reasons for termination of employment.

The Respondent submits that, unfortunately, after time and support had been extended to the Complainant, it did not result in the Complainant being competent enough in the role of Deputy GM and ended in the Complainant being dismissed as a result but this in no way relates to the Complainant being dismissed by reason of her pregnancy.

The Respondent denies that the Complainant has been unfairly dismissed by reason of pregnancy and submits that she has been dismissed for good cause and that fair procedures that fully respected her rights and entitlements were fully observed by the Respondent in effecting the dismissal.

The Respondent refers to the Respondent’s procedures in relation to discipline and submits that the Complainant was dismissed in line with the procedure. The Respondent submits that the following are examples of offences, which will result in disciplinary action being taken against an employee up to and including dismissal: serious violation of safety / hygiene rules, failure to perform the job function to a competent level.

The Complainant was afforded the right to appeal this decision, which she availed of. The appeal was again held in line with the Respondent’s procedures and in a fair and transparent manner.

The Respondent argues that the Complainant’s performance received feedback in relation to where she needed to improve, which was essential to the sustainability of the business and she was not capable of producing the results which were required of the Deputy GM. The Complainant had serious issues highlighted to her in relation to her performance but was unable to perform to the required level. The termination of her employment was directly related to her performance and not the pregnancy. The Respondent submits that one of the Complainant’s colleagues (EL) was also pregnant at the time of the Complainant’s dismissal. This employee, who is also part of the management team, has had a difficult pregnancy, has been out sick leave and has required that special adjustments be made to her roster. The Respondent has acted in a fair and considerate manner taking into account the protections required when an employee is pregnant. The manager has performed well in her role, did not require several job reviews and improvements in performance to be highlighted and has been treated in such way as is expected and demanded under the protection of pregnant employees in the workplace.

The Respondent cites the following in support of its case: UD1269/2014, UD944/2014, ADJ-00008846, ADJ-000012521.

Evidence of EL, Deputy GM (appointed in or around February 2019)

EL said that she started working for the Respondent in November 2017 as Front Office Manager. EL gave evidence that she is heavily pregnant and, due to her pregnancy being a high risk one, she agreed on changes to her working arrangements with the GM. She stated that was treated fairly and sensitively.

Evidence of the Owner, JL

JL said that he was the owner of the hotel but had no role in the day to day running of the business and did not know how the Complainant was performing. He noted that the hotel opened in December 2017 and suffered serious loss in 2018. He said that although he lives abroad, he visits the hotel location regularly as he has family there. In or around July 2018 the locals raised some concerns in respect of the hotel being managed badly. One of the former serving staff (DF) brought to his attention that he left the hotel because he was treated badly in allocation of hours. JL wanted to hold a meeting to find out what was going on. JL was told that the Complainant was in charge of the rostering. He said that he investigated the matter. At the meeting on 23rd July 2018 he expressed his concerns in respect of the hotel being badly managed and lack of supervision. The new GM (PO) was made fully aware of his concerns. JL was unsure as to whether any other managers were disciplined. He said that his area of concern was that staff were badly treated. He claimed that all complaints related to the bar. JL stated that he also received two phone calls from two staff members who were unhappy. JL stated that he was notified of the health and safety breach, he was shocked by that.

He felt that the Complainant was incapable and did not have skill to be the Deputy GM.

In cross-examination, JL clarified that he received feedback mainly from customers who complained about poor service and staff not being supervised by management or trained. These complaints mainly related to the bar. JL confirmed that the former GM (MO’S) was reprimanded several times. However, he argued that the Complainant was responsible for training.

When it was put to JL that at the relevant time (from April to July 2018) there was a Bar Manager (DC) in charge of the bar, JL stated that he was not aware of having a bar manager.

Evidence of the General Manager, PO

PO said that prior to the commencement of his employment on 3rd August 2018, he met with JL, the Owner and discussed his role. He was aware that the financial situation was bad and that the reviews on relevant websites were bad. He claimed that the specific concerns related to the bar. He noted that prior to taking up his role he visited the hotel as a “mystery shopper” and noted a number of issues in his report in June 2018. In cross-examination PO confirmed that, at the relevant time MO’S was the General Manager.

PO met with two former staff members, DF and DC to ascertain why they have left the hotel. DF outlined the unfairness in respect of rostering. PO looked in to the matter and spoke with the Complainant. He noted that the Complainant did not accept it but was willing to participate in mediation. PO confirmed that no formal grievance was raised by either DF or DC. PO confirmed that he made a decision to re-employ DF. DC was also asked to return but did not do so.

PO attended the very end of the meeting on 23rd July. He noted that five Managers were in attendance. He confirmed that no other manager was disciplined for any of the issues raised, including the “low staff morale” issue.

PO stated that his understanding of the Complainant’s role was that she was responsible for the whole hotel and she was support to the GM. PO stated that the Complainant was “very very very hard worker” but he did not think that she had experience in managing people. It was also the Complainant’s role to ensure training. PO, when asked by the Complainant’s representative could not confirm whether there was any training record in place. PO noted also that the Complainant was also responsible for the labour cost. However, it was put to him by the Complainant’s representative that there was the GM in situ at the relevant time, there was an external accountant, hospitality consultant and Board of Management but the Complainant was the only person held responsible for the increase of the cost.

PO argued that the Complainant was given instructions in respect of the health and safety breach and he expected the instructions to be carried out. He noted that he asked the Complainant to come back to him with three areas she needed to improve at and required help.

PO referred in his evidence to a number of documents:

·         an undated note entitled “meeting with [the Complainant]” – he stated that it was a “chat” during shift take over. The document contained 11 bullet points listing his concerns.

·         PO stated that he also met with the Complainant on 4th September 2018 and received copies of the minutes by email from AB on 10th September 2018. He confirmed that as of 10th September 2018, a disciplinary meeting with the Complainant was considered. When asked why he didn’t take an action if he thought that the issues were so serious, he replied that he did not know. It was put to PO that the issues could not be that serious if it took him seven days to write a letter inviting the Complainant to the meeting and then the letter was left at the reception.

PO said that he removed all the managers’ HR files to his office as he was of the view that HR having access to them could lead to leaks. When asked by the Complainant’s representative why these notes were never shared with the Complainant, he replied that he thought the HR Consultant (AB) dealt with that.

PO confirmed that the Complainant informed him on 12th September 2018 that she was pregnant. He could not remember if he took any action in respect of her GP request to assign lighter duties to the Complainant. However, it was pointed out that he clearly remembered what accommodations were afforded to EL when she informed the Respondent of her pregnancy. PO remained silent when asked if that was because the Respondent was getting rid of the Complainant.

In respect of the disciplinary process, PO noted that he followed the advice from AB but did not check the procedure himself.

Evidence of the Independent Hospitality Consultant, CH

CH stated that he was asked to sit in at the meeting of 23rd July 2018. He was aware that JL was approached by DF and possibly another former employee and he was disappointed with the performance of the hotel. JL called out the whole team to improve the performance, in food and beverage area in particular. CH suggested to PO to contact AB to arrange informal “job chats” with the staff to help progress, give guidelines, help. They were an answer to some staff feeling not appreciated. He said that some five Managers, including the Complainant met with AB. He said he could not comment on whether it would be his understanding that the meetings were minuted. He noted that during the period of three weeks when there was no GM in place, he spent two days a week in the hotel, he was available to advise and help.

CH noted that he had no issue with the Complainant, and she was a hard working person and she put in the hours but he did not think that the timing was right for her. He felt that she was overpromoted. He said that the Complainant applied for the Food & Beverage Manger position but the former GM felt that she was better suitable for the DGM.

In respect of the March appraisal, CH stated that it was a “box ticking exercise” by the former GM.

CH noted that he had conversations with JL in respect of how to deal with grievances and disciplinary procedure and it was agreed that he would be offered as the first point of appeal. CH pointed out that he had always had a good relationship with the Complainant. The Complainant rang him on the day of dismissal. He was aware that there was a meeting but he was not involved in the process. He said that he was surprised of the outcome. During the telephone call he told the Complainant that she has right to appeal the decision and, if she was happy, he would hear the appeal. The Complainant never said that she had a problem with him hearing the appeal, if she had, he would have stood aside.

CH stated that as part of the appeal process, he met with PO, AB and the Complainant. He confirmed that minutes of his meetings with PO and AB were not furnished to the Complainant. He formed a view that the issue around the mould was significant and could have serious ramifications. He felt that the relationship between the Complainant and the GM was not working out and it was a significant factor. CH confirmed in cross-examination that he had access to the Complainant’s file including CV, job description, letters from PO and the invitation to the meeting, and “probably” the job chats notes. He confirmed that he did not produce a report on the appeal as he “had it in his own mind”. In respect of his letter to the Complainant, it was put to CH that not all allegations were addressed. CH said that he “did not want to put too much stuff in case it affected her career in the future” and he believed she has a career ahead. When prompted, CH said that he considered alternatives but the hotel was not performing financially well enough to create a new position for the Complainant.

In cross-examination, CH confirmed that the former GM was exhausted and they “gave him a break”. He accepted that, when exhausted people don’t perform well. CH agreed that this was taken into account with the former GM but not the Complainant.

CH said that there were issues with DF and DC, albeit he noted that they did not invoke the procedures. He said that it is incumbent on GM or DGM to create a safe environment.

CH stated that he absolutely does not believe that the Complainant was dismissed for the reason of pregnancy.

Having considered the evidence and submissions of the parties, I decide the following.

This is a complaint pursuant to the Unfair Dismissals Act. The Complainant claims that she was dismissed for pregnancy or connected matters. The Respondent denies the claim and it is the Respondent’s position that the Complainant was dismissed due to serious violation of safety / hygiene rules, and failure to perform the job function to a competent level.

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.”

An employee who is dismissed by reason, inter alia, of her pregnancy is exempted from the requirement to have one year’s continuous service with their employer in order to qualify under the Act. However, the burden of proving that her dismissal is ‘wholly or mainly’ as a result of her pregnancy rests on the Complainant in such a case under the Act. In that regard, I am guided by the decision of the Employment Appeals Tribunal in the case UD591/1999, in which the Tribunal stated as follows:

“The combined effect of Sections 6(1), 6(6), 6(2) and 6(2)(f) do not appear to the Tribunal to alter the basic legal principle which has been consistently held by successive divisions of the Tribunal to apply in these cases, namely, that in order to seek protection of the Unfair Dismissals Act, as amended, the claimant herself must bear the burden of proof in showing herself to be entitled to this protection. This she does by showing that her dismissal was on the grounds of pregnancy.

The claimant must show the Tribunal that it has jurisdiction in the matter. Where the claimant successfully shows the tribunal that her dismissal was, on the balance of probabilities, on the grounds of pregnancy, or matters relating thereto, the Tribunal will then assume jurisdiction in the matter.”

By operation of the law therefore, the Complainant has the protection of the Act from dismissal on account of her pregnancy but not otherwise. Therefore, in order for me to find in favour of the Complainant’s complaint of unfair dismissal I must find that pregnancy was “wholly or mainly” the reason for dismissal.

In reaching my decision, I am guided by the Determination of the Labour Court in Trailer Care Holdings Ltd v Deborah Healy (EDA128) where the Labour Court was asked to determine if the Complainant’s dismissal occurred as a result of her pregnancy.

In its Determination that Labour Court stated:

“It abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicated within the limits of their jurisdiction.”

Section 6(4) of the Unfair Dismissals Act 1977, provides that a dismissal shall not be deemed to be unfair if results wholly or mainly from a number of criteria including competence:

“6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, …”

In the Employment Appeals Tribunal case Richardson v H Williams & Co. Ltd (UD/17/1979,) the Complainant was dismissed because the Respondent had been dissatisfied with his work performance. The EAT noted that the claimant was not given an opportunity to defend himself and the Tribunal applied the following principles:

“(a)Where an employee has been given a justified warning that, unless his or her work improved in a specific area, his or her job would be in jeopardy, then it follows that such employee must be given:

(i)a reasonable time within which to effect such improvement; and

(ii)a reasonable work situation within which to concentrate on such defects.”

It follows, therefore, that before a decision is made to dismiss an employee, an employer should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

It was not disputed that the Complainant informed the Respondent of her pregnancy on 12th September 2018. I find that once the Complainant made the Respondent aware of her pregnancy, she had entered a protected period and there was an added responsibility on the Respondent to ensure that its actions were procedurally robust.

It is clear from the evidence of the parties that the Complainant joined the Respondent at a time when the business was facing many challenges having been opened in December 2017. There is no recorded evidence to suggest that there were any problems with the Complainant’s performance during the probationary period. In fact, it was argued that the Complainant received nothing but praise during her performance review on 29th March 2018. I do not accept CH’s assertion that the review was a ‘box ticking exercise’.

I find that the Complainant applied for the position of the Food & Beverage Manager. She was employed in the role of the Deputy General Manager and she was subsequently entrusted with acting up as the General Manager on 29th June 2019, and the role of a Bar Manager and Restaurant and Beverage Manager in July 2019. I am satisfied that the Respondent trusted and valued the Complainant. The circumstances do not project a situation where the Complainant’s performance was considered on such a low level that the parties would be aware that it could lead to the termination of the Complainant’s employment. In fact, the Complainant was essentially expected to run the business without any support for a period of time. It is clear that the Complainant was given very little, if any, support or instructions. When she sought to deal with various issues such as staff morale, there was not much enthusiasm or support from the GM’s side.

The Complainant informed the Respondent, following the arrival of the new GM on or around 31st July 2018 that she was physically exhausted, had a headache for the past two weeks and felt nauseous. It was suggested by the GM that she take some leave to recuperate. The Complainant was unable to attend work from 14th to 27th August 2018 as a result of exhaustion. The Complainant returned to work and, from reading the minutes of the disciplinary meeting, it appears that duties such as rostering were removed from her and any staff issues were to be dealt through another manager.

I am satisfied that the Respondent became aware of the Complainant’s pregnancy on 12th September 2018. It is striking that the Complainant, who has now made her pregnancy known, is served with an invitation letter to a disciplinary meeting. Although some matters such as the keg room issues, staff morale and labour cost appear to have been informally discussed at the so called ‘job chats’ I have not been presented with credible evidence from the Respondent’s side that there were written records of warnings or letters of concerns. The Respondent did have a formal appraisal system in place and no issues were raised in March 2018.

Both the Respondent and the Complainant referenced an incident in relation to the keg room. From the evidence adduced, I am satisfied that it happened but I am not satisfied that it was of such a major consequence that the Complainant was disciplined immediately for her part. Rather, it was left unattended for some time. I note the Respondent’s reliance on an email from AB to the General Manager and CH of 10th September 2018 where AB asks if a disciplinary meeting should be scheduled with the Complainant. However, despite the General Manager arguing that the matter was of a major concern, he did not make any comment in that regard in his reply. By his own evidence “it was on his mind” but he did not know why he did not take an action if it was such a serious matter. There was no investigation in regard to this matter and it remained ignored until 17th September when the Complainant was invited to the disciplinary meeting.

I note the Respondent’s reliance on the ‘job chats’ notes. The Respondent submitted a number of documents which, it purports are notes prepared by AB immediately following each of these ‘job chats’. I have a number of concerns in that regard. Firstly, it was clear from the evidence of CH in particular that these meetings were designed to be informal chats to provide help and support rather than performance reviews. The Complainant was not aware that she had been a subject to performance reviews. She was not made aware that minutes of the meetings were taken, and these were not made available to her during her tenure with the Respondent or after she had requested a copy of her HR file. The Complainant appeared to suggest that these were a form of post-dismissal created records and she did not believe that a “secret” HR file existed in the GM’s office. I find the explanation of the Respondent that some of the records were kept in a separate file in the GM’s office to avoid HR staff seeing them not plausible.

The Respondent argued that these were contemporaneous notes of the meeting. However, a note dated 31st July 2019 refers to a meeting held subsequently between PO and DC (former staff member) at some stage in the beginning of August 2018. The undated bullet points report allegedly outlining the matters raised by PO with the Complainant consists of 11 points. PO noted that it was an agenda for a ‘chat’ during a shift take over in a ballroom. PO was unable to say when the conversation took place, the document was not signed or dated and a copy was not given to the Complainant. At the hearing the GM noted that the note “didn’t go on [the Complainant’s] HR file”.

Even if these documents were accepted to reflect the version of events as presented by the Respondent, having reviewed them, I find that at no stage was the Complainant warned that her performance was so poor that there was a possibility that she could be dismissed. The Complainant was not put on notice that her employment was in jeopardy. In fact, the Respondent’s notes show that on every occasion the Complainant was assured by the Respondent that her hard work was appreciated. This was emphasised on many occasions with the GM highlighting at the hearing that the Complainant was a “very very very hard worker” and the Respondent submitting at the hearing that she was a valued member of the management team and a very hard-working individual.

I find that, if the Respondent had issues with Complainant’s performance, it did not ensure that she understood the issues. I further find that the Respondent did not put a plan in place to address those issues. In addition, I find that any supports or training that was required could and should have been made available to the Complainant. A formal review process in relation to the Complainant’s performance should have been agreed and the Complainant should have been made aware that failure to improve her performance could result in dismissal. I note that the Respondent relied on the offer extended to the Complainant to identify three areas she wanted guidance on and the Complainant’s failure to do so in two weeks. The Complainant apologised for the delay in reverting to the GM due to being busy (as per the minutes of the disciplinary meeting). The Complainant noted that she should have emailed the GM on her day off. I find that, it was the responsibility of the Respondent to give the Compliant time and opportunity to do so. She should not be expected, in addition to working in a number of roles, to do her homework on her days off.

I find that the Respondent was fully aware that the Complainant took some time off due to exhaustion suffered as a result of her working in various capacities prior to and until the appointment of the new GM. Despite that, having been informed of the Complainant’s pregnancy, the Respondent did not engage with her with regard to her work arrangements and performance despite the fact that she did submit a medical certificate requesting lighter duties.

I note the decision in McGuirk -v- Irish Garden Publisher Limited DEC-E-2007-031 which is an authority for the principle that an employee’s poor work performance can give rise to the termination of the employment even where the employee is pregnant. I note in that case that there was a history of poor performance, including the threat of termination, which the Complainant was on notice of well in advance of the pregnancy being known to the employer.

In McGuirk the Equality Officer said: “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.”

I note that the Respondent had serious concerns in relation to the performance of the business. I also note that none of the other managers, including the former GM and the new GM who replaced him were held accountable for the failures of the business. As the Respondent argued that the majority of the issues related to the bar area, it is even more striking that only the Complainant was held responsible even though from 11th April 2018 to mid-July 2018 there was a Bar Manager in place, DC. Remarkably, at the adjudication hearing, the Respondent argued that it was not aware of having had a Bar Manager in place. I find it particularly concerning as, having read the variety of records relied upon by the Respondent, I note that DC is clearly referred to therein as the bar manager. On the request of the Adjudication Officer, the Respondent furnished post-hearing evidence confirming DC’s position within the business. It is clear from his contract of employment that DC was, in fact “Bar & Bistro Manager of the property reporting to the General Manager and Team.” I note that DC was approached by the Respondent and asked to return, despite the alleged underperformance of the bar.

The Respondent relied heavily on an issue raised informally by a former staff member (DF) with the owner of the business. The owner, JL, on the basis of an informal conversation with DF formed an opinion that the Complainant was to blame. There was no formal complaint, no investigation and yet, DF’s version of events was accepted and subsequently, the new GM personally asked DF to return to the hotel. JL said in his direct evidence that he had no role in the day to day running if the business. To quote he said “I wouldn’t have any idea how the Complainant was performing” and yet, he “felt the Complainant was incapable and did not have the skill to be the Deputy DM.”

The Respondent in the dismissal letter suggests that the dismissal arose solely as a result of the Complainant’s “failure to perform the job function to a competent level and serious breach of Health & Safety standards”. The invitation to the disciplinary meeting outlines that “there are areas of your performance which I am concerned about especially in relation to Health and Safety, labour costings and team morale”. At the disciplinary hearing a plethora of issues were raised by the Respondent such as: the keg room matter, stock taking, labour cost, delay in installing shelving, staff morale and the previous offer that the Complainant identifies three areas of concern to her and be mentored by the GM.

At the disciplinary outcome hearing the GM informed the Complainant that “…the company need somebody with greater experience in the role of Deputy General Manager”.

It appears that the Respondent was unclear as to what exactly are the allegations against the Complainant. Rather, it appears that what started with relatively inconsequential shortcomings, mainly due to the pressure the Complainant was under, escalated to the dismissal of the Complainant following her notification of her pregnancy and the Respondent struggled to find some justification for this abrupt dismissal.

I must find, on the balance of probabilities which version of events I find to be the more credible. In the absence of acknowledged performance review of the Complainant’s performance and / or any disciplinary process for poor performance bar the ‘job chats’ records relied upon by the Respondent, I find it difficult to see any justification for the dismissal. Accordingly, I find that the Complainant’s dismissal resulted wholly or mainly from her pregnancy.

Redress

I note that the Respondent objected to the re-instatement of the Complainant. Having heard the parties’ submissions and taking into consideration the Complainant’s personal circumstances I find that compensation is the most appropriate form of redress in the instant case.

The Complainant’s weekly wage during her employment with the Respondent was €692.31 gross. She was dismissed on 21st September 2018. She secured new employment from 2nd November 2018 to 6th January 2019 on a fixed term basis. She earned total of €1,365 gross during that period. The Complainant suffered a miscarriage on 10th December 2018 on her own evidence was on illness benefit between 10th and 31st December 2018, followed by the job seeker’s benefit. She has not secured a new employment since. The Complainant submitted evidence confirming that between February 2019 and August 2019 she applied for some 7 positions and was in contact with two recruitment agencies. The Complainant fell pregnant again. On 12th August 2019 the DEA&SP confirmed that her Maternity Benefit claim has been disallowed. The Department clarified that the benefit “is paid to a person who takes maternity leave from work.” As the Complainant was not in insurable employment at the relevant time she was not entitled to the benefit.

·         I note the determination of the Employment Appeals Tribunal in Susan O’Kelly v WYG Engineering Limited UD 301/2011 when the Tribunal held that while loss arising from an unfair dismissal stops once further employment was secured, the further employment must be permanent in nature and on comparable terms to the employment from which the claimant was unfairly dismissed. Courtaulds Northern Spinning Ltd v Moosa [1984] I.R.L.R. 43 followed.

In the herein case, the further employment was not permanent in nature. Thus, while the amount of earnings from it would be considered in mitigation of loss, it did not stop loss arising from the unfair dismissal.

·         The EAT held in O’Kelly that, where the further employment was finite, the claimant must prepare for its ending by looking for further employment. I accept that in this case the failure to mitigate loss at this juncture was directly caused by the Complainant’s miscarriage. Following a period of recuperation, from February 2019 the Complainant made some, albeit limited attempt to mitigate her loss but she has not secured a new employment since. The Complainant, at the time of the second day of the hearing was heavily pregnant with her due date approaching.

·          

·         The EAT further held in O’Kelly that a period out of work due to maternity was not equivalent to a period of disability or sickness. A claimant was therefore entitled to recover for loss suffered during such period (Corcoran v Kelly & Barry Associates UD174/1978).

·         Having considered the submissions of the parties and the evidence adduced at the hearing of this complaint, I declare that the complaint is well founded. Having taken into consideration the circumstances of this case and the Complainant’s limited attempts to mitigate her loss I award her compensation of €25,000.

The Complainant submits that she was not paid her annual leave entitlements on cessation of her employment. She claims that she is owed €2,076 gross in that regard.

The Complainant argues that she took 13 days annual leave in 2018.

The Complainant submits that she was paid fortnightly. She noted that in the final payment on 25th September 2018 she received her wages for two weeks worked until the termination date. In her correspondence with the Respondence the Complainant conceded that she worked 9 out of 10 shifts and therefore one additional annual leave day could be offset against the 10th shift. She also noted that she received 4 weeks’ notice as per her contract (until 18th October 2018). The Complainant noted that the Respondent’s assertion that she was paid 6 days annual leave in the month of September 2018 is incorrect as this was her notice period.

The Complainant exhibited a spreadsheet of her days of annual leave and days in lieu taken in 2018 and supporting “Holiday request” forms.

At the hearing the Complainant argued that she was also owed €100 gross in respect of the public holiday that fell on 2nd April 2018.

The Respondent denies the claim.

The Respondent argues that the Complainant had accrued an entitlement to 21.45 days of annual leave. In addition, she had accrued 6 days of annual leave in respect of public holidays (New Year’s Day, St. Patrick’s Day, Easter Monday, first Monday in May, June and August 2018) totalling 27.45 days.

The Respondent claims that the Complainant took 21 days of annual leave in 2018 and six additional days were paid to her on cessation of employment. The Respondent claims that the Complainant was paid €1,500 gross on 11th September 2018, €1,500 gross on 25th September 2018 effectively being one month’s pay for the month of September. The Respondent argues that the Complainant worked until 20th September and therefore she was paid for six days she did not work, which are effectively six days of annual leave (21st September and week of 24th to 30th September 2019). The Complainant was also paid additional €3,000 gross being one month’s pay in lieu of notice.

In relation to this claim I find as follows.

It was not disputed that the Complainant had accrued 21.45 days of annual leave in 2018. An additional six days were accrued in respect of the public holidays.

The Complainant argued that she took 13 days of annual leave before her employment was terminated. The Respondent argued that she took 21 days and six were paid for 21st September and 24th – 30th September 2018.

The Complainant presented copies of her annual leave request forms signed by her and approved by the GM. The forms show that the Complainant took some 13 days of annual leave in 2018 (9th February, 22nd -23rd March, 20th – 24th June and 21st -25th August). On her own evidence and as per the spreadsheet exhibited by the Complainant, she also took annual leave on 13th March and 27th April 2018. I note that the Complainant accepted that one day of annual leave could be offset against one of the days she was paid for but did not work during her last week of employment.

I find that the final payslip dated 25th September 2018 shows payment of two weeks’ wages, albeit it is unclear why the payment is at €1,500 a fortnight. At the hearing the parties confirmed that the Complainant’s weekly salary was €692.31 (i.e. €36,000/52). The payslip shows also a payment of a month’s notice. In the absence of any evidence on the Respondent’s part, I do not accept the Respondent’s assertion that an additional 6 days of leave were paid to the Complainant for 21st September and 24th – 30th September 2018. In the absence of any evidence supporting the Respondent’s assertion that the Complainant took 21 days of annual leave in 2018, I find that the Complainant is owed 11.45 days of leave.

In respect of the Complainant’s claim that she is owed €100 for a public holiday that fell on 2nd April 2018 I find that at no stage throughout the process was the Respondent made aware that the Complainant alleges underpayment in respect of public holidays. Having considered the matter, I am satisfied that the Respondent has not been on notice of the Complainant’s claim and I am therefore of the view that this claim was not properly before me and I do not have jurisdiction to proceed with the claim. In any event, the evidence before me shows that the Respondent’s calculation of leave entitlements includes the public holiday in question.

I declare this complaint to be partly well founded. I order the Respondent to pay the Complainant €1,585.39 in respect of the economic loss in respect of annual leave.

In addition, I direct the Respondent to pay the Complainant an additional €500 in compensation for breaches of her rights under this Act.

Unfair dismissal – pregnancy- annual leave.