ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024184

Parties:

	Complainant	Respondent
Parties	Karina Brandao	Irish Side Limited t/a Rhinestones

Representatives

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00030807-001	09/09/2019

Date of Adjudication Hearing: 22/01/2020

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I affirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and anything opened in the course of the hearing).

An Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates, or such other date as may be set out in Section 41(6) of the WRC Act of 2015. In limited circumstances, complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. However, in the case presented it is noted that the Complainant complaint (notified by Workplace Relations Complaint Form dated the 9th of September 2019) issued within six months of the alleged discriminatory Act.

Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they may write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. It is noted that no EE2 form was submitted herein.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated the 9th of September 2019) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably (here in the process of selection for termination) than another person has or would have been treated in a comparable situation on the grounds of her Family Status (as detailed in Section 6 of the 1998 Act (as amended)).

The Operative Section is Section 6 of the Employment Equality Act 1998 (as amended) where :-

Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where…

a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (the “discriminatory grounds”)….

Sub Section 6 (2) As between any 2 persons the discriminatory grounds .. are…

(c) That one has a family status and the other does not (the “family status ground”)…

In the event that the Complainant is successful it is open to me to make an award of compensation and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

Background:

The Complainant alleges that she was discriminated against in the manner of her selection for dismissal.

Summary of Complainant’s Case:

The Complainant gave oral evidence on her own behalf.

Summary of Respondent’s Case:

The Respondent witnesses presented as two sisters who own and operate a jewellery shop. They both gave oral evidence.

Findings and Conclusions:

I have carefully listened to the evidence of the parties herein. The Complainant responded to an advertisement placed in the window of the Respondent shop seeking retail assistance. The Complainant had previously worked two years in retail and was delighted when her appointment was confirmed as she was interested in the niche jewellery market that the Respondent company caters to.

The terms of the employment were very relaxed. No Contract of Employment was provided. No terms of employment were made known. Loosely, the arrangement appears to have been three eight-hour shifts at €12.00 nett per hour. This could go up or down depending on demand. I am assured by the Employer that all tax PRSI and USC has been paid. The Complainant only ever received her nett pay.

The Employment commenced in early May 2019 and the Complainant was very happy and was considered a great member of the sales staff and she worked alongside another three or four part time staff.

At the beginning of July 2019, the Complainant came into the workplace and finding the two sisters (co-owners of the Respondent shop) to both be present, decided the time was good to tell them that she was pregnant. The Respondents said that they were delighted with the Complainant’s news and they say that it did not register for them that this made the employment problematic in any way. As their staff tended to be female they had dealt with pregnancies before. It is accepted that the Respondent had at that time one other member of staff out on maternity leave (Dana) and she was expected back in due course (though only for a while as the individual in question had other long-term plans). I would accept that the Respondent witnesses were well used to members of their sales staff going out on maternity leave.

However, it is an inescapable fact that four weeks later the Complainant was told by the two Respondent witnesses that her employment was being terminated and that she could leave immediately. The Complainant was greatly shocked at this sudden turn of events. There had been no preamble and no warning. There is no suggestion that the Complainant’s ability to perform her tasks was diminished nor is it suggested that there were difficulties with her workplace performance. The Complainant pointed to a non-pregnant co-worker who had come into the workplace after her and who was kept on – though I understand that that lady was a student who had previously worked in the store on a seasonal basis (summers and Christmas).

The effect on the Complainant was disastrous. She could not find alternative employment as she was pregnant, and she was not entitled to Maternity benefit when her baby was born.

In circumstances where no other reason was provided, the Complainant believes that the Respondent took the long-term view that having a pregnant employee would be too disruptive. I believe therefore that the Complainant made out a Prima Facie case.

The Respondent witnesses vehemently deny this allegation and provided me with a detailed history of difficulties they experienced over the course of the summer of 2019. In particular, one of the sisters had a very bad accident which left her arm irreparably damaged. This was particularly bad as this sister is the sole buyer for this specialised shop and she was now unable to perform her annual job of heading over to the United Kingdom and purchasing stock for sale in the shop in Dublin. Every summer she would drive to the UK, attend markets the length of the country, meeting up with contacts and sorcing jewellery which she could sell back home.

In addition to this, the then looming date of October 31st and Brexit was a very real threat to the ladies, whose margin of profit in the shop is not great. Also the possibility of tariffs at that time was thought to be very real. In fact, the threat of tariffs still looms albeit has now been pushed out to next January 2021.

I found the Respondent witnesses to be very sincere and I accept that last summer was particularly brutal for them. They worried about their future both financially and physically. In fact, the future seemed very uncertain for them. At the same time, the Respondent witnesses knew and admitted that they had treated the Complainant very badly. They apologised for their actions and accepted that the manner of her termination of employment was below accepted standards. They insisted that the reasons for the dismissal was purely financial and arose from the uncertainty. However, I don’t think this stacks up.

In particular, I would accept the Complainant’s argument that she was not the last employee into the workplace and that the student who came in after her should have been the first to be let go. Additionally, there was no exploration of scaling back hours or working with all the employees to see how hours and shifts could be managed. Instead the Complainant was selected outright for termination and I have to agree with the argument that the only thing that distinguished the Complainant from the other members of staff was the fact that she was pregnant. She was therefore treated less favourably by reason of her pregnant status.

I therefore find that the Complainant was discriminated against.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030807-001 I award compensation in the amount of €5,000.00

Dated: 25/08/2020

Workplace Relations Commission Adjudication Officer: Penelope McGrath