UDD1955

This is an appeal on behalf of The Elms Furniture Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00010127/CA-00013212-001, dated 9 January 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer had found that Ms Ciara Leeson (‘the Complainant’) had been unfairly dismissed for reasons ‘wholly or mainly’ connected with her pregnancy and awarded her compensation of €6,000.00 under the Act. The Respondent’s Notice of Appeal was received by the Court on 19 February 2019. The Court heard the appeal in Dublin on 17 September 2019.

The Court notes that the Complainant also succeeded before the Adjudication Officer in claims under the Terms of Employment (Information) Act 1994, the Minimum Notice and Terms of Employment Act 1973 and the Payment of Wages Act 1991. None of the awards made to the Complainant under those Acts has been appealed to the Court. At the hearing of the within appeal, a director of the Respondent, Mr Fergal McCarthy, informed the Court that the aforementioned awards had not been paid to the Complainant by the Respondent although some nine months had passed since the date of the Adjudication Officer’s decision. Mr McCarthy gave an undertaking to the Court that that awards would be paid to the Complainant in early course.

The Factual Matrix

The Respondent operates a furniture retail and interior décor business, primarily. Some years ago, a café business was established by the Respondent within the same premises largely for the purposes of encouraging increased footfall to the furniture business. It was a deli-style café with a limited hot food offering. The hot food was prepared off-site by an external company. The Complainant was employed as a waitress in the deli side of the business from 11 April 2016 until she was notified on 10 March 2017 that her position was being made redundant, along with those of three other employees of the Respondent, including an interior décor adviser in the furniture side of the business, an accountant who worked across both sides of the business and a kitchen porter/waiter. The Complainant worked on a part-time basis for an average of nineteen hours per week. She was paid €9.50 per hour.

The Respondent’s submission is that the business as whole, including the deli side of it, had lost a significant amount of money in 2016/2017. The decision was therefore taken by the directors to restructure both sides of the business. The interior design consultancy service was discontinued. Mr Fergal McCarthy, a qualified accountant and director of the business, took greater day-to-day responsibility for the accounts, obviating the need to retain an accountant on a full-time basis. The decision was also taken to upgrade the deli to a full-service restaurant as it was uneconomical to continue buying in hot food prepared externally. A commercial kitchen was installed and a chef was hired in February 2017.

The Complainant’s Evidence

The Complainant told the Court that she informed her Manager, Ms Michelle Dunne, in or around mid-December 2016 that she was pregnant. She did not speak to Mr McCarthy directly about her pregnancy but believed that from early January 2017 it was common knowledge in the workplace that she was pregnant. The Complainant suffered a dose of pleurisy in late February 2017 that required her to take a week’s certified sick leave. She was due to return to work on 2 March 2017. However, when she checked the roster for that week (available via Facebook), she discovered she hadn’t been given any hours. When she contacted Mr McCarthy by text message to query this, she says she was asked to come in to meet with him on 10 March 2017. At that meeting, she was informed that her position was to be made redundant with immediate effect. The Complainant told the Court that this came as a complete surprise to her as she had no knowledge prior to this that the Respondent’s business was losing money and was aware that the Respondent had invested in a new kitchen and had just recently hired a chef.

The Complainant also gave evidence of her subsequent attempts to get alternative work, her difficulties in securing maternity benefit because of the timing of her dismissal and the duration of her maternity leave.

Evidence of Ms Michelle Dunne

Ms Dunne told the Court that she started in the Respondent’s business as a waitress but was subsequently promoted to the position of Manager in the deli. She confirmed that the Complainant had informed her of her pregnancy in or around mid-December 2016. The witness also told the Court that she relayed that information to Mr McCarthy shortly afterwards and he asked her in response about the Complainant’s plans for maternity leave.

Ms Dunne then told the Court that she resigned as Manager on 30 January 2017 and reverted to her role as a waitress. She continued to assist Mr McCarthy where she could with certain managerial tasks pending the appointment of a new manager. The witness gave one week’s notice of resignation from her employment on 21 March 2017. She told the Court that Mr McCarthy had never discussed any of the redundancies with her and, in particular, that she had not been given advance notice that the Complainant was to be made redundant on 10 March 2017.

Evidence of Mr Fergal McCarthy

Mr McCarthy, in his evidence, confirmed that Ms Dunne had informed him in December 2016 that the Complainant was pregnant. He told the Court that at no stage did he speak directly to the Complainant about her pregnancy prior to 10 March 2017, the date on which he informed her that she was being made redundant. He said that it was the Complainant who raised the issue of her pregnancy on that date for the purpose of advising him that she had a shortfall in contributions to quality for maternity benefit and that she would require his assistance to complete certain forms that would have to be submitted to the Department of Employment Affairs and Social Protection. The witness stated that he told the Complainant he would give whatever assistance he could in that regard.

Mr McCarthy also gave evidence of the Respondent’s financial performance in 2016 and 2017 and the contribution of the café business to the overall losses experienced by the company. He went on to outline a review of the business undertaken with an external accountant and the recommendation that flowed from that review to the effect that overheads and staff numbers needed to be reduced in the short term. The witness said that he, therefore, made the decision that he would inform the staff affected on 10 March 2017 that their positions were redundant. He invited the Complainant by text message to meet with him on that date but did not give her advance notice of the purpose of the meeting.

Discussion and Decision

The first issue to be determined by the Court concerns whether or not the Complainant is qualified to pursue a complaint under the Act. She commenced employment on 11 April 2016; her employment was summarily terminated by reason of alleged redundancy on 10 March 2017. She was not given any notice of dismissal. She was entitled to one week’s notice of termination pursuant to the Minimum Notice and Terms of Employment Act 1973. It follows that her date of dismissal for the purpose of the Act was 17 March 2017. That being the case, the Complainant does not have one year’s continuous service with the Respondent.

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 Court, having carefully considered the evidence before it, finds that the Complainant in this case has not met that high bar. She was pregnant on the date of her dismissal and her employer, by his own evidence, was fully aware of that fact. However, the Court finds that three other employees of the Respondent were also made redundant in or about the same time as the Complainant was let go. The evidence given by Mr McCarthy in relation to the Respondent’s financial performance and the reasoning underpinning the Respondent’s decision to change the nature of its catering operation from that of a deli to a restaurant was not challenged by the Complainant. The Court finds that the Respondent had a genuine economic basis for effecting redundancies. A redundancy situation existed in the business and, as a consequence, four employees lost their jobs. It cannot be concluded from the evidence before the Court that the Complainant was selected for redundancy ‘wholly or mainly’ because of her pregnancy.

The Court is bound to conclude, however, that the Respondent failed utterly to apply any semblance of fair procedures in the process of making the Complainant (and her colleagues) redundant. All four appear to have been treated with equal disregard for their rights to fair procedures.

Having regard to the foregoing, the Court finds that the Respondent’s appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
7 October, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.