ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021179
Parties:
| Complainant | Respondent |
Anonymised Parties | Receptionist | Hotel |
Complaint:
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-00027863-001 | 18/04/2019 |
Date of Adjudication Hearing: 03/09/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
Background:
The Complainant was employed as a Receptionist from 17th October 2018 to 26th December 2018. She was paid €11.00 per hour and worked 36 hours per week. She has claimed that she was dismissed because she was pregnant. She has sought compensation.
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Preliminary Point Jurisdiction
The Complainant had less than 12 months service and so is not protected by the Unfair Dismissals Act unless she establishes that she has cover due to one of the protected grounds. In this case she is claiming that she was dismissed on grounds of pregnancy. It is necessary to testy this as a preliminary point.
Claimant’s position
On 17th September 2018 she discovered that she was pregnant. She submitted medical certificates from early December and on 19th December. She spoke on the ‘phone to L and advised her that her illness was pregnancy related. It was pointed out that the medical certificate did not refer to pregnancy, she then secured a certificate specifying that the illness was pregnancy related. The Respondent stated that the employment was terminated on 27th December for unauthorised absence. She had certificates covering the period December 10th to January 21st. In January the Respondent requested her to sign a document that she had resigned her position. By e-mail dated February 8th the Respondent referred to her possibly returning to work either full time or part time. The fact that the Respondent pressurised her to sign a resignation letter and a willingness to re-employ her is inconsistent with their position that her employment was terminated. She reaffirmed that she told the Respondent about her pregnancy on December 19th. She has a medical certificate dated 19th December stating that she is 5-6 weeks pregnant. She resigned her post on 27th March 2019, after being dismissed and asked back. Continuing in this employment was unfeasible and the trust was gone. As a result, she has lost out on Maternity Benefit and the Christmas bonus. She is seeking compensation.
Respondent’s Position
The Complainant was on a six-month probation. She received a copy of the Staff Handbook and sickness absence policy, notifying the notification requirements during absences due to illness. Her employment terminated during her probation due to the abandonment of her role. She did not attend work on December 27th, 28th and 29th. There was no contact from her from 19th December to 12th January 2019. She failed to adhere to sickness absence notification procedures. She was not constructively dismissed as alleged for reason of pregnancy. On 10th December she phoned her line manager to advise that she would be absent due to sickness. She also stated that she would be in Romania from December 24th to 28th December. She was advised that she had made no annual leave arrangements. She sent a photo of a medical certificate stating the reason for the absence as “infection”. She was due to work on December 14th and she sent in another photo of a certificate for the period 12th to 19th December due to “chest infection”. She was due to work on 21st December but on 18th she sent a text to advise that she would not be back until after December 28th. She was asked to contact the Respondent, but she didn’t. The manager advised her to work on 21st December. She sent a photo of a certificate stating that she was unfit from 19th to 26th December due to “medical problem”. She was then asked to work on 27th December. She stated that she was in Romania from 24th to 28th December. She was then told that holidays were not authorised and was asked to work on 27th December. She confirmed that she would be in work on 27th. She did not attend work on 27th or 28th December and no explanation was given. The Respondent sent a text requesting an explanation for her absence and requiring her to work on 29th. She did not respond. She did not attend work on 29th. By 7th January she had not contacted the Respondent and they concluded that she had abandoned her position. That day the HR manager advised the line management that they should treat the employment as terminated. On 12th January before the Respondent had contacted her to advise that the employment had terminated, she sent a text message disclosing that she was pregnant. On 13th January she messaged her line manager asking if she was still employed. That day the Respondent advised her that the employment had terminated due to her absence and failure to notify them. On 14th January she called to work and collected her personal items and P45. She submitted a retrospective medical certificate covering the period 26th December to 14th January. On 8th February the Respondent contacted her to establish if she was fit for work and that they were willing to discuss options with her. She did not respond. On 18th February she wrote to the Respondent referring to an attempt to dismiss her due to her pregnancy. On 1st April she submitted her resignation from the company. On 17th April the Respondent wrote to her to advise that her employment ended on 26th December for failure to attend work or notify any member of management.
She was not dismissed on grounds of pregnancy. She abandoned her role and her employment ended during her probation, following continued unexplained absence. She cannot sustain a claim for constructive dismissal. She does not have “locus standi” to bring a claim under this Act as she does not have 12 months continuous service. Her employment terminated on 26th December 2018 and they were notified of her pregnancy on 12th January 2019.
Findings on Jurisdictional Point:
A Complainant must have 12 months continuous service with a Respondent company in order to present a complaint to the WRC. Unless, as in this case, it is alleged that the grounds for dismissal was pregnancy related, one of the protected grounds in the Act. I find that in order to have the complaint heard the Complainant must be able to establish that she was dismissed because she was pregnant. I note the conflict of evidence inn this case. The Complainant alleges that she informed the Respondent that she was pregnant on 19th December 2018. I note that the Respondent alleges that they were not informed until 12th January 2019. I note that on 10th December the Complainant advised her manager by text that she would be absent due to sickness. I note that she never returned to work after that. I note that she sent medical certificates on 10th December citing “Infection”, on 14th December she sent a certificate citing “Chest Infection” for the period 12th to 19th December 2018. I note that she then sent a text that she would not be back until December 28th. I note that there was an allegation by the Respondent that she told them that she was going to Romania from 24th to 28th. She advised the hearing that she did not travel to Romania. On 19th December she sent a certificate citing “Medical Problems” covering the period 19th to 26th December. She did not return to work on 27th 28th or 29th December and gave no explanation. I note that she had not returned to work or contacted the Respondent by 7th January, so they treated the situation as she had abandoned her position. Therefore, I find that the most likely date of termination was 7th January 2019. I note that the Respondent assert that on 12th January she advised them by text that she was pregnant. It stated “Sorry but im pregnant 3 months and am still unfit to work. I will probably go on illness leave” I find that this would not suggest to me that she had already told the Respondent that she was pregnant. If so it might have said as you already know I’m pregnant or something similar. I note that the Complainant asserts that she advised L by phone that she was pregnant in December. I note that this is denied. I find it most unusual that medical certificates would not make reference to pregnancy until 12th January. She stated that she was 3 months pregnant and unfit to work, not with an infection as was previously certified. This was the only reference was to pregnancy. However, the Complainant supplied a certificate to the hearing dated 19th December 2018 just stating that she was 5-6 weeks pregnant. I note that the Respondent has asserted that they have no record of that certificate. I note that the Complainant produced a certificate on 14th January covering the period 26th December to 14th January 2019, which was retrospective. I note the conflict of evidence in this case. On the balance of probability, I find that the Complainant has not produced clear and inequivalent evidence of informing the Respondent of her pregnancy until 12th January 2019. On the balance of probability, I find the Respondent’s evidence more believable. Therefore, I find that the Respondent did not know of the pregnancy until 12th January 2019 and that they had concluded that the employment was terminated by abandonment by 28th December 2018 or 7th January 2019 at the latest. I note that the Complainant on her claim form states that the employment terminated on 26th December 2018.
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Decision:
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.
For the above stated reasons, I have decided that the Complainant has not established that she was dismissed on grounds of pregnancy.
Therefore, I have decided that as she does not have the requisite 12-months continuous service she does not have standing to present a complaint for dismissal.
I have decided that she does not have “locus standi” (the right or capacity to bring an action or to appear in a court)
I find that this complaint is not well founded and so it fails.
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Dated: 16-10-2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Alleged pregnancy related dismissal, locus standi |