Complainant

Respondent

Anonymised Parties

A Housekeeper/Childcare Relief Worker

A Childcare Centre

Representatives

Mark O’Connell BL

Rory Treanor BL

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-00020947-001

01/08/2018

The respondent runs a childcare centre comprising a nursery for babies and toddlers and a pre-school under the Early Childhood Care and Education (ECCE) programme.   The centre also has an “after-school club” for older children. The complainant commenced employment as a creche assistant on December 14th 2016. She received a contract to this effect at the end of her probation on February 6th 2017.

In accordance with regulations under the Child Care Act 1991, governing the qualifications of childcare workers, employees working directly with children must hold a minimum of a FETAC (Further Education and Training Awards Council) level 5 qualification in childcare. On her curriculum vitae, which was submitted in evidence at the hearing, the complainant said that she had a Bachelor’s Degree in Psychopedagogy from Romania which she said, is equivalent to a FETAC level 7 award.   The complainant was employed on the assumption that her qualification was comparable at least to FETAC level 5.   Any person working in the childcare sector who has a qualification other than FETAC level 5 must apply to the Department of Children and Youth Affairs (DCYA) for confirmation that their qualification is acceptable. This application cannot be submitted by an employer and the complainant applied for confirmation to this effect.

The complainant’s evidence is that she was planning to get married on September 16th 2017 and she wanted to go home to Romania to prepare for her wedding.   She said that she approached her employer and asked if she could take a few weeks off, but the owner said she could only take two weeks. In the end, she decided to leave her job and on July 24th 2017, she gave a letter to her employer, giving one month’s notice of her intention to resign. In her letter, she gives her reason for resigning as “personal reasons necessitate that I vacate my position and focus on improving my situation at home.”

In October 2017, the complainant was looking for work again and she approached the respondent’s childcare centre. She was offered some relief hours on a week to week basis and she was asked to have her qualifications verified by DCYA. The owner gave evidence that around November 9th 2017, the complainant informed the operations manager that her Degree was not compatible with a FETAC level 7 qualification as she had previously thought. It was also not equivalent to a level 5 qualification. The owner said that they informed the complainant that they would keep her on until Christmas, but they told her that she “would have to do FETAC level 5.”

In her evidence, the owner said that some of her staff were not available in early January and she asked the complainant to fill in for two weeks. She then decided to offer her a role as a housekeeper / childcare relief staff in the after-school club, a job where the FETAC qualification was not required.

An email was submitted in evidence that shows that on January 30th 2018, the complainant asked the respondent’s general manger to complete a salary certificate and that her mortgage broker looked for confirmation that she had a full-time job.   She also asked the general manager to complete a form to show that she would get work experience as part of a FETAC level 5 course in childcare. In relation to the salary certificate, the owner replied by email on January 31st and said that she needed to speak to the complainant about her contract.   She said in her evidence that she explained to the complainant that, at the end of June, the ECCE programme and the after-school club would be finished and she would have no relief work available. She told the complainant that she would have to put an end date on the salary certificate. On February 2nd, the owner completed the form, indicating that the complainant was employed on a fixed-term contract that would end on June 29th 2018.

On February 19th, the complainant’s mortgage broker asked her to get a letter from her employer stating that she had been employed from 2016 and that her contract would be renewed in June 2018. The owner said that she did not provide this letter as she could not guarantee that she could employ the complainant after June.

In February 2018, the complainant was around six weeks pregnant and she said that she told the owner about her pregnancy at the time that she told her she was applying for a mortgage. The owner said that her recollection is that she learned from one of her managers at the time of the “big snow” in March 2018, that the complainant was pregnant.

The owner’s evidence is that in April 2018, an administrator discovered that the complainant had not been issued with a contract of employment following her return to work in October 2017. On April 30th 2018, she was issued with a fixed-term contract as a housekeeper / childcare relief staff. The contract stated that her employment would terminate on June 29th 2018, “as due to lack of qualifications and availability of work, we cannot guarantee you any further employment.” It is the complainant’s case that her employment was terminated due to her pregnancy.

Continuity of Service and Protection under the Unfair Dismissals Act

Section 6 of the Unfair Dismissals Act 1977 – 2015 (“the Act”), provides as follows:

“(1)Subject to the provisions of this section, the dismissal of an employeeshall 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 sub-section 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) – (e) are not relevant for this case.

(f)   …the employee’s pregnancy, attendance at ante natal classes, giving birth or breastfeeding or any matter concerned therewith…”

Section 6 of the Act therefore, clearly provides that the dismissal of an employee for pregnancy or matters related to pregnancy “shall be deemed” to be unfair.

With a small few exceptions, section 2(1)(a) of the Act provides that an employee who, at the date of the termination of their employment, has less than one year’s continuous service, may not bring a claim of unfair dismissal. One exception is the category of employees described at (f) above, and one of the effects of the insertion of sub-section (2A) in section 6, is to offer the protection of the Unfair Dismissals Act to an employee who claims that their dismissal was due to pregnancy, even if they have less than one year’s service.

The effect of the legislation set out above is that a dismissal that relates wholly or mainly to pregnancy may be an unfair dismissal, unless there were other substantial reasons and, that an employee in these circumstances with less than one year’s service may claim protection under the Act.

The complainant commenced employment with the respondent on December 14th 2016 and she resigned on August 24th 2017. She was offered work again in October 2017 and her employment was terminated on June 29th 2018. The question of continuity of service is addressed at section 1 of the First Schedule of the Minimum Notice and Terms of Employment Act 1973:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.”

It is evident that the complainant voluntarily left her employment on August 24th 2017 and, for this reason, her employment with the respondent is not continuous from December 2016.

The Burden of Proof

This complainant alleges that she was dismissed because she was pregnant and she is therefore exempt from the requirement to have completed one year of continuous service to bring a complaint under the Unfair Dismissals Act. However, she must establish that, on the basis of the primary facts, her dismissal was “wholly or mainly” as a result of her pregnancy.

I have considered the written and verbal submissions of both parties at the hearing of this complaint and it is my view that the complainant has not established the basic facts upon which it could be presumed that her employment was terminated due to her pregnancy. I have reached this conclusion for the following reasons:

When she was employed on a permanent basis in December 2016, the complainant’s contract stated that her job was that of a “creche assistant.” When she returned to work for the respondent in October 2017, she was employed as a “house-keeper / relief childcare” because the regulations under the Child Care Act 1991 meant that she was not qualified to work as a creche assistant. To address that problem, she commenced a FETAC level 5 course in childcare.

In February 2018, at the complainant’s request, she was provided with a salary certificate.   This showed that she was employed on a fixed-term contract until June 29th 2018. She did not dispute this fact and she didn’t make a case that she should have been issued with a permanent contract.

During the summer months of July and August, when the ECCE programme and the after-school club were not running, the respondent needed less employees. Because the complainant was not qualified to work with pre-school children, her employment was terminated on the end date specified in her contract.

In the Labour Court case concerning Elms Furniture Limited and Ciara Leeson, UDD 1995, the respondent submitted that, although Ms Leeson was pregnant when she was dismissed, the reason for her dismissal was because her job was redundant. Finding in favour of the respondent, the Chairman, Mr Haugh stated,

“A redundancy situation existed in the business and, as a consequence, four employees lost their jobs. It cannot be concluded on the evidence before the Court that the Complainant was selected for redundancy ‘wholly or mainly’ because of her pregnancy.”

Although the circumstances are different, based on the evidence presented to me at the hearing of this complaint, I cannot conclude that the complainant was dismissed “wholly or mainly” because of her pregnancy. I accept that she was given a fixed-term contract on a relief basis until the closure of the ECCE scheme and the after-school club at the end of June 2018. I accept that her contract was not renewed because she was not qualified to work as a childcare assistant.

As I have concluded that the complainant was not dismissed because of her pregnancy, I decide that this complaint is not upheld.

Length of service for Unfair Dismissals Act, pregnancy-related dismissal,