ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00019047

Parties:

Complaint(s):

Date of Adjudication Hearing:  22/07/2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Unfair Dismissal Acts 1977

CA-00024594-001/002

Background

 On the 23rd of July 2018, the claimant was employed as a sales support Manager. She was paid €1923 gross per month for a 39-hour working week.

The complainant was working with the Chief Executive officer, Managing Director, and Director

The position that the complainant had taken up was a completely new position within the respondent. The purpose of the position was to create leads to various organisation and companies for sales representatives to call on.

At the outset, the complainant was not aware that she was pregnant prior to the commencement of the employment of this position.

 The complainant found out some weeks after commencing the position that she was pregnant. She informed the Managing Director (PM) on the 21st August 2018 that she was pregnant and he (PM) asked the (Complainant) what her marital status was. The complainant also informed other senior Management of the respondent that she was pregnant.

The complaint submitted because of disclosing her pregnancy status, she noticed significant changes in the workplace.

 In this regard, the complainant noticed that her workload was increased. Specifically, the complainant recalls that on one of the weeks concerned she was very sick from pregnancy-related issues. As a result, the complainant was out sick on Monday and Tuesday due pregnancy and back-related issues, had a scan on Wednesday, had booked-in appointment on Thursday, and when the complainant returned to work on Friday, she was pressurised by the (DS)director of the respondent who was wondering where her weekly report was.

The same director accessing the complainant ‘s calendar, which in turn made the complainant stressed. The complainant informed the health and safety officer at the time who was very supportive. On the 11th October 2018, the complainant received an email advising that there was to be a probation meeting

On or about the 12th October the complainant experienced unusual behaviour in the course of her workday

a.            The complainant was delayed arriving at work due to weather conditions. she advised the appropriate (PM) director in relation to the same and was advised to log the absence. The complainant subsequently found out that no other staff members were required to log absence for being late on the HR system.

b.            The complainant was not invited to weekly sales meeting organised by the respondents (DS) director.

The complainant was asked to attend a probation meeting in Café Costa in little island, despite the fact the complainant had her own office. When the complainant arrived, she found the respondent's directors (PM) and (JK) sitting in the circular table in the middle of the floor surrounded by other people in the Café

It was submitted that the complainant was offered coffee which was declined and the respondent’s (MK) then simply stated

“Complainant’s Name. I am just going to be forward with you. This is not going to be a good meeting. We are letting you go as it is not working out”

The complaint submitted that (PM) was staring at t her stomach making her uncomfortable. The respondent (JK) stated the complainant previous role and their model did not fit as it was a new role,

The complainant submitted that she was working all week training in a new sales representative along with developing on a new way of approaching sales.

The complainant asked about her commission and gave details of places where she had sent representatives. The complaint was told that she was let go as of today.

The complainant further submitted that having dismissed her the respondent then asked her did she have an opinion how they could develop the business.

It was submitted that the complainant was extremely upset and particularly embarrassed as the meeting occurred in a public place and others could hear the same.

It was submitted that the complainant was discriminated against due to her pregnancy

The complainant’s representative submitted legal arguments on behalf of their client

 Respondents Position

The respondent submitted details of their business. It was stated that the complainant was employed as a “lead generator” for the sales team

The complaint was hired on the July 23rd, 2018 and dismissed on the 12th October 2018

It was the respondent's submission that the complainant was lawfully dismissed, due to her poor performance and her failure to show any improvement, subsequent to her failure to perform having been addressed with her on two prior occasions prior to her dismissal

It was submitted that the respondent applied proper [procedures to the performance issues, as they became evident and ultimately lawfully dismissed the complainant, who was still in the probationary period of her contract and less than three months service in total.

The first meeting with the complainant occurred approximately 7 weeks after she was hired

The respondent submitted that second meeting there was no improvement and no clarity provided by the complainant as to the work she had done

At the third meeting, the complainant's performance there had been no improvement it, she was in no position to provide evidence of work done and she was dismissed

The respondent submitted the complainant did not disagree with the facts at the meeting. And that she did not dispute she had failed to generate leads

The respondent stated the complainant’s allegation that she was discriminated against was unfounded.

The respondent submitted that the complainant failed to appeal the decision to dismiss her.

The respondent has 14 employees 4 of whom are women.

Findings

 Hearings on the 4th June and 22nd July 2019.

Both parties made written and verbal submissions at the hearing.

I find that the respondent created a new position within the company.

I find the minutes were “just statements” and not minutes that were agreed by the parties present

I find that based on the evidence from the respondent this was a “green-field “project. The respondent accepted in documentation they had no experience whatsoever in this field of operations.

I find that at the same time based on the documentation of the 13th September 2018 that only 4 pre-qualified leads have been produced for the sales team in 8 weeks

I find that the complainant was employed to fill this role with the respondent and I find there little or no guidelines or job specifications available for the position.

I find based on the evidence from the complainant that when she informed respondents (PM) that she was pregnant he responded by querying her marital status.

I find that the respondents (PM) did not attend either of the hearings to rebut or give evidence.

I find that when the complainant informed the respondent that she was pregnant   there was a change of attitude from them

I find      quote exactly from the email dated the 27th September 2018 from (PM) where it states;

“I called into you at 5 mins to 5 to ask you to have tour shopping centre report prepared for a meeting with myself (PM) and (J) in the morning but you were gone home.

 It's unfair to the rest of the staff if you are leaving early apart from the fact that you won’t have enough time to get your work completed.

can you email your report to (j) and (J) tomorrow10.30 and we will review and meet up with you to discuss in the afternoon”?

I find that at no stage during the meetings with the complainant was she advised that improvement was not forthcoming her position may be jeopardy

I find that sales meetings were held and the complainant who was employed sales support Manager not informed and invited to attend them

I find the dismissal in a public place was in total disregard for the well-being of the complainant and completely lacks an understanding of the stress and embarrassment that she was put under.

I also find that she did not receive a dismissal letter until the 25th of October 2018 even though she was informed that she was dismissed immediately. I find that the respondent had their minds made up to dismiss the complainant regardless of what the complainant might say on her behave.

The law

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the 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:

(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(b) the religious or political opinions of the employee,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

(e) the race or colour of the employee,

(f) the pregnancy of the employee or matters connected therewith, unless—

(i) the employee was unable, by reason of the pregnancy or matters connected therewith—

(I) to do adequately the work for which she was employed, or

(II) to continue to do such work without contravention by her or her employer of a provision of a statute or instrument made under statute, and

(ii) (I) there was not, at the time of the dismissal, any other employment with her employer that was suitable for her and in relation to which there was a vacancy, or

(II) the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding pregnancy.

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

 then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(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,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Article 2 (A) of Directive 92/85 sets out that the pregnant worker is:

“A pregnant worker who informs her employer of her condition, in accordance with National Legislation and/or National Practice.”

Article 10 of Council Directive 92/85/EEC and it states

“In order to guarantee workers (who are pregnant, who have recently given birth or who are breast feeding), within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, shall be provided that Member States shall take the necessary measures to prohibit dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave refer to an Article 8 (1), save an exceptional cases not connected with her condition which are permitted under national legislation and/or practice, and where applicable, provided that the competent authority has given its consent;

This issue is effectively even if there are substantial grounds for the dismissal and they are giving in writing because there is no competent authority to give the consent any dismissal of an employee in those circumstances will still be a discriminatory dismissal.

2 if a worker, within the meaning of Article 2 is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing.”

The Labour Court in the case Teresa Cross (Shanahan) Croc’s Hair & Beauty and Helen Ahern case EDA195 reviewed the law on this matter in some depth. The Court set out that the protection of women during pregnancy has been made clear by the European Court of Justice that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on the grounds of gender and referred to the decisions in case C-177/88 Dekker -v- Stichting Vormingscentrum voor Jong Volwassenen 1990 ECR1-3941. Equality on the grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union

Recommendation:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complainant was dismissed partly due to her pregnancy I was awarded the complainant €13,000 in compensation.

Dated:   7^th November 2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Key Words: