Complainant

Respondent

Anonymised Parties

A Barber

A Barber Shop

Representatives

In person

Owner

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-00029513-001

08/07/2019

The complainant began working for the respondent on 1st December 2018. The complainant subsequently went on Maternity Leave in March 2019 and was due to return to work on or about 1st September 2019. The complaint relates to alleged Unfair Dismissal which is said to have occurred during the complainant’s period of Maternity Leave.

The respondent contends that the complainant was not unfairly dismissed. The respondent stated that the Barbershop was newly opened in a vacant Showroom adjacent to its Car Wash and Tyre Depot. The respondent stated that it was notified of the complainant’s pregnancy in November 2018 and in January 2019 it employed a part time Barber to provide cover for the complainant’s medical appointments and eventual maternity leave. The respondent stated that there were problems with the replacement’s attendance from the beginning and eventually it was decided to advertise for another replacement. The respondent outlined the difficulties it experienced in hiring a further replacement and that the attendance issues of the first replacement Barber continued and he was ultimately “let go” for poor attendance. The respondent stated that given the difficulties it had experienced since opening the Barbers and on the basis that it was unable to hire a further replacement it decided to close the shop with effect from 23rd May 2019.

The respondent stated that after it had closed the shop in May 2019, it was rented to a new occupant/ tenant for a one-month trial in June 2019 which ended when the tenant subsequently got another job elsewhere.

The respondent contends that it kept the complainant well informed throughout and when she enquired in June 2019 if her position would be available to her after her Maternity Leave had concluded, the respondent stated that the shop was currently rented on a one-month trial basis, but it did not know what would happen thereafter.

The respondent stated that the shop closed permanently in July 2019.

The complainant stated that she began her employment on 1st December 2018 and was asked to find a replacement to cover sickness absences and maternity leave. The complainant stated that it was very difficult to source a replacement, but ultimately, she found a Barber who was willing to cover her absence. The complainant confirmed that she kept in touch with the respondent during her maternity leave and was aware that the replacement barber had been “let go” due to poor attendance and that the premises was being rented out in her absence. The complainant stated that on 7th June 2019 she passed the barbers and saw a sign saying, “under new management” and became concerned that her position would no longer be available to her following her Maternity Leave in September 2019. The complainant stated that she contacted the respondent that day but that there was no clarity provided to her on the issue.

The complainant stated that she contacted the respondent again on 9th June 2019 and outlined her entitlements to return to work and that it was against the law to be dismissed while on Maternity Leave. The complainant stated that the situation relating to her employment caused her great distress and she had to attend her Doctor due to the extreme anxiety caused to her by the respondent.

The complainant stated that she subsequently sought the advice of the Citizens Information Service and was advised to submit her complaint to the Workplace Relations Commission (WRC) which she did on 8th July 2019.

The complainant contends she was unfairly dismissed while on Maternity Leave and is seeking compensation in relation to her complaint.

The Applicable Law

Section 2 of the Unfair Dismissals Act 1977 states as follows:

2(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a)    an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

Section 6 of the Unfair Dismissals Act 1977 at relevant part states as follows:

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:

…(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

The complainant did not have 52 weeks continuous service with the respondent. However, as the complaint relates to matters concerning the complainant’s pregnancy, the continuous service requirement does not apply. To succeed in her complaint, however, it must be established that the dismissal of the complainant resulted “wholly or mainly” from the circumstances described in Section 6(2)(f) of the Unfair Dismissals Act, 1977.

I have given careful consideration to the submissions of both parties to this complaint. I note that the respondent employed the complainant in the early stages of having set up the barbershop with a view to building a client base and securing the future viability of the business. At the time the complainant began working in December 2018, the respondent was already aware that the complainant was pregnant having been notified of such in November 2018.

It was not disputed by the complainant that there were efforts made in January 2019 to hire a replacement for her medical appointments and subsequent Maternity Leave, and the complainant, having been kept informed by the respondent during her maternity absence, was aware that there were difficulties with the attendance of the first replacement and further difficulties in hiring a subsequent replacement. The complainant also knew that the shop was closed in May 2019 and with the exception of a trial rental period of one month, which proved unsuccessful, it closed permanently in July 2019.

In all of the circumstances of this complaint, I find that having employed the complainant in the knowledge that she was pregnant and having made significant efforts to find replacement(s) for her absence, it is not plausible to suggest that the respondent dismissed the complainant as a result of her pregnancy. It appears that at the material time, the complainant was aware of and accepted the difficulties being experienced by the respondent and its ultimate decision to close the business permanently. As the complainant’s employment was not terminated “wholly or mainly” as a result of her pregnancy, I find that the complaint cannot succeed.

Having considered the submissions of both parties and for the reasons stated, I find that the complaint of alleged unfair dismissal is not well founded.