Complainant

Respondent

Parties

NATASHA NOWACKI

LAURENCE WALL, TOMAS O'SHEA and JOSEPH KAVANAGH, Veterinary Partnership t/a Moyne Veterinary Clinic

Representatives

Emma Cassidy, B.L., instructed by Niamh Moriarty, Solicitor

Dorothy Donovan, B.L., instructed by Frizelle O’Leary & Co., Solicitors

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-00000048-001

04/10/2015

The complainant, Ms. Natasha Nowacki, is a qualified vet who commenced employment in 2004 with the respondent, a Veterinary Partnership which has a practice in Co. Wexford.   Ms. Nowacki alleges that she was discriminated against on the grounds of gender and family status by the respondent contrary to the provisions of the Employment Equality Acts, 1998 - 2015.  There is a further complaint of harassment under the Acts. The complainant went on maternity leave in 2007 returning to work in August of that year. In October 2014 Ms. Nowacki again went on maternity leave and returned to work in April 2015. The complainant alleges that she was subjected to discrimination during her pregnancy, that on her return to work she was not provided with the same terms and conditions as she enjoyed prior to her maternity leave and that her workload was reduced and her income adversely affected. The complaint was lodged with the WRC on 4 October 2015.

During her initial pregnancy in 2007 the complainant had to cease certain duties such as lambing and working nights because of the possible risk to her health.

In Spring 2014 the complainant advised the respondent that she was pregnant. Prior to the complainant’s maternity leave the respondent recruited two new vets. One of the partners also passed a remark which implied an expectation on the respondent’s part that the complainant would not be returning to work.

After the birth of her twins one of the partners asked Ms. Nowacki if she was going to have more children. Upon her return to work the complainant was advised that there was not enough work for all the vets in the practice.

The complainant’s allocation of work was reduced after her return to work with a consequent reduction in her commission earnings.

The respondent rejects the allegation that the complainant’s terms and conditions were altered so as to make them less favourable. The commission rates were unaltered.

The only exclusion from duties that occurred in relation to the complainant were those excluded on medical advice or those which the complainant herself chose not to do.

The workload in the practice has reduced due to less testing as a result of the eradication of brucellosis and the removal by the Dept. of Agriculture of the requirement for pre-movement testing in September 2015.

The male vet was not recruited to provide maternity cover but to cover for an injury to one of the partners. Due to the illness and subsequent unfortunate death of his wife this partner has been unable to return to full-time duties and consequently that vet was retained in employment.

This complaint was originally lodged with the WRC on 4 October 2015. Hearings in relation to the complaint were held on 20 January 2016 and 1 March 2016. A decision was issued on 18 April 2016 which dealt with the employment status of the complainant. Ms. Nowacki appealed this decision to the Labour Court and the Court issued Determination No. EDA198 on 4 April 2019 which found that the complainant was encompassed by the scope of the Employment Equality Acts, 1998-2015, at all times material to her complaint. The Court referred the matter back to the WRC pursuant to Section 84(d) of the Acts for investigation and determination. A further hearing in this regard took place on 20 November 2019.

In 2004 Ms. Nowacki, a Veterinary Surgeon, responded to an advertisement placed in a veterinary magazine by the respondent and was subsequently commenced employment with zthe practice which is located in a rural town. The practice is operated as a partnership and the three partners are Laurence Wall, Thomas O’Shea and Joseph Kavanagh. In 2005 discussions took place between the parties and it was agreed that Ms. Nowacki would be paid on the basis of commission and that this commission would be a percentage of the fee charged to the customer by the practice. The complainant’s hours of work included certain liabilities as regards weekend and night working.

In March 2007 the complainant went on maternity leave returning to work in August 2007.   Prior to going on this leave the complainant would have avoided lambing sheep and working nights on medical advice and also would not have been able to do large animal work for a number of weeks. In Spring 2014 the complainant again became pregnant and advised the respondent accordingly. The complainant also advised that she could not be involved in lambing. A vet (Ms. Z ) was recruited on a full-time basis to replace a part-time vet during the complainant’s pregnancy. Another vet (Mr. X) was employed at the commencement of the complainant’s maternity leave. Mr. X was related to one of the partners. The complainant commenced her maternity leave in October 2014 and gave birth to twins. The complainant returned to work in April 2015. Prior to that return to work there was a meeting between the complainant and the respondent. The complainant requested that she would work a four-day week apart from the busy periods and this was agreed in principle.   The vet, Mr X, was retained in employment.

The complainant claims that subsequent to her return to work the amount of work allocated to her reduced significantly and that consequently there was a reduction in her income. The complainant asserts that the job she returned to did not provide the same terms and conditions of employment as she had enjoyed prior to her going on maternity leave.

Section 6 of the Employment Equality Act, 1998, states:

(1)   For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a)   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) (in this Act referred to as the ‘discriminatory grounds’) which –

(i)               exists,

(ii)              existed but no longer exists,

(iii)            may exist in the future, or

(iv)            is imputed to the person concerned…

The discriminatory grounds are defined in Section 6(2) and include –

(a)   that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(c)that one has family status and the other does not (in this Act referred to as “the family status ground”)

Section 2(1) of the Act defines “family status” thus:

“family status” means responsibility –

(a)   as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years…

Ms. Nowacki alleges that Mr. X was employed by the respondent to cover her maternity leave and that when she returned from maternity leave he continued in employment performing duties that the complainant could perform.   This reduction of workload automatically led to a reduction in earning capability given the fact that the complainant is remunerated on a commission basis. According to the complainant, her earnings were as follows:

April to October 2013:     €25,732

April to October 2014:     €24,187

April to October 2015:     €17,136

The complainant also stated that a full-time vet (Ms. Z) had replaced a vet who had worked part-time hours. This vet commenced employment in July 2014.

The complainant further stated that shortly after she had informed the respondent of her second pregnancy and at a time when the respondent was seeking a replacement for a part-time vet, one of the partners, Mr Kavanagh, asked her should the practice be looking for two vets. The complainant took this remark as a clear reference to a presumption that the complainant would not be returning to work after her maternity leave.   In addition, the complainant referenced a conversation with another partner, Mr. Wall, which occurred during her maternity leave, when she was asked if she intended having any more children. These remarks before and during her maternity leave together with the reduction in workload following her return to work are, according to Ms. Nowacki, clear evidence of discrimination against her based on her gender and family status.

The respondent replied to these allegations. In relation to the position of Mr. X, the respondent denied that he was hired to cover the complainant’s maternity leave. One of the partners, Mr. O’Shea, suffered a shoulder injury and Mr. X was employed to perform that partner’s work whilst Mr. O’Shea was unable to do so. He commenced employment on 1 October 2014. In April 2015 Mr. O’Shea’s wife was diagnosed with a serious illness and Mr. X was subsequently asked to stay on in employment. Mrs. O’Shea’s condition deteriorated and in August 2015 she regretfully died. According to Mr O’Shea’s evidence there were three young children in the family and he could not return to his former role at that time as he had to care for them.   In the meantime, Mr. X had been due to go to the United States in May but was unable to obtain a work permit in this regard. He was therefore again asked to remain as cover for Mr. O’Shea.

With regard to the reduction in earnings the respondent pointed to the fact that the workload in the practice has suffered a 35% reduction generally due to less testing as a result of the eradication of brucellosis in 2009 and the removal by the Department of Agriculture of the requirement for pre-movement testing in September 2015. The respondent also pointed to the request of the complainant to perform her duties over four days and argued that this reduction in workload equated to the drop in her earnings. In relation to the recruitment of a full-time vet to replace a part-timer the respondent stated that this was aimed at building up the business in the small animals’ sector of the practice.

Mr. Kavanagh stated in evidence that he did not recall making the remark about possibly needing two vets. He further stated that had Mr. X gone to the U.S. his duties would have been divided between the existing vets. Mr. Wall in his evidence denied having asked the complainant if she was going to have more children stating that he would know not to ask such a question.   He did recall a conversation in which he had complimented Ms. Nowacki on her family.

Section 85A of the Employment Equality Acts, 1998-2015, sets out the burden of proof which applies to claims of discrimination. It requires the complainant, in the first instance, to establish facts upon which she can rely in asserting that she suffered discriminatory treatment on the grounds specified. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination occurred.   The Labour Court considered this matter in Determination No. EDA0821, Cork City Council v McCarthy as follows:

“At this initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary for her to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be reasonably drawn from those facts.”

In another case, EDA0823, Dyflin Publications Limited v Spasic, the Court also considered how a corresponding provision in U.K. legislation would be considered in that jurisdiction and quoted from a Court of Appeal decision, Madarassy v Nomura International plc, (2007) IRLR246.

“Section 63A(2) does not expressly or impliedly prevent the tribunal from hearing, accepting or drawing inferences from evidence adduced by the respondents disputing or rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they are not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.” (Mummery LJ)

The Labour Court then went on to state:

“What the passage quoted indicates is that the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

As noted above, Ms. Nowacki was remunerated by way of commission which was a percentage of the fee charged to the customer by the practice. This commission equated to 60% for large animal work and 50% for small animal work. The other vets to whom the complainant makes reference, Mr. X and Ms. Z were remunerated by way of salary.

The complainant argues that her work has decreased due to the fact that Mr. X was retained after her return to duty and that Ms. Z was appointed as a full-time vet to replace a vet who had worked on a part-time basis. The status of Mr. X’s original employment is disputed between the parties with the complainant stating that he was her maternity leave replacement and the respondent saying that he was taken on because of the injury suffered by Mr. O’Shea. During discussions prior to the complainant’s return to work, she was advised that there would be plenty of work for her as Mr. X would be leaving the practice. It is therefore obvious that the retention in employment of Mr. X has impacted on the amount of work available to the complainant. Similarly, Ms. Z’s employment on a full-time basis also reduced the availability of work. The inclusion of the complainant on the Saturday roster was significantly affected.

In summary, therefore, I accept that the complainant has suffered a reduction in income following her return to work. This could, in some circumstances, be sufficient to shift the probative burden onto the employer.  The respondent for their part approached this case on the basis that the complainant was a sub-contractor. In their evidence it was stated that the complainant would not be rostered if there was not sufficient work for her.  In their written submission the respondent unambiguously states that the first obligation as regards providing work was to its employees. The respondent did not at the period in question regard the complainant as an employee.

The complainant claims to have been discriminated against on the grounds of gender. In making her case the complainant does not specifically name a comparator but references the continued employment of the male vet. However, a further element of her argument in this regard is that another vet was hired on a full-time basis to replace a part-time vet. The vet that was recruited in that context is female. I do not accept therefore that this element of the complainant’s case has established that there was discrimination based on gender. Another element is the claim that the complainant was not allowed to return to her position on the same terms and conditions as had applied prior to her pregnancy. It is an accepted principle that pregnancy is a uniquely female condition and that any adverse treatment will subsequently lead to direct discrimination on the grounds of gender. EU Directive 2002/73/EC (as amended) states:

A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.

There is of course nothing in writing pertaining to the complainant’s job.   I note that the lack of documentation in respect of employees is a regrettable feature of this case. I note that an examination of the figures regarding Ms. Nowacki’s income (supplied by the complainant) over the period 2009 to 2014 shows that this fluctuated from a low of €58,548 to a high of €68,874. In the case before me I find that the complainant returned to work in the same position, i.e. a veterinary surgeon and that her method of remuneration (commission) and the rate at which it was paid remained unchanged. What did appear to change was the amount of work allocated to the complainant but as there was no existing guarantee, either express or implied, in this regard I do not find that her existing terms and conditions were changed.

Whilst the employment of Ms. Z is a factor, the element of the complaint regarding loss of work / commission is mainly contingent on the status of the initial and subsequent continued employment of Mr. X (insofar as the complainant states that he was employed as a maternity leave replacement and the respondent states that he was initially hired as cover for the injured partner, Mr. O’Shea).   There is no documentation such as a Statement of Employment to help resolve the issue as, according to Mr. Kavanagh, Mr. X is on a verbal contract. Having examined the submissions and verbal evidence I find no evidence to support the complainant’s assertion that Mr. X was employed solely as cover for her maternity leave. Equally, I find that it is implausible to suggest, as the respondent does, that the fact that the complainant would be absent for a number of months was not a factor in the decision to engage Mr. X. I therefore find that cover for Mr. O’Shea because of his injury and the maternity leave of Ms. Nowacki were the reasons for the initial employment of Mr. X. There is also no evidence to suggest that this employment was seen as anything other than a temporary measure. This is reinforced by the conversation that took place in February when the complainant was assured that there would be plenty of work as Mr. X was leaving to go to the U.S. in May.

There then followed two unforeseen occurrences. Around about the same time as the complainant’s return to work in April 2015 Mr. O’Shea’s wife was unfortunately diagnosed with a serious complaint. There were three children in the family and as a consequence there was uncertainty as to when Mr. O’Shea could return to full duties. Sadly, Mr. O’Shea’s wife died in August 2015 and at the time of the complaint he had not resumed his full role in the practice. The other occurrence was the failure of Mr. X to secure a work permit for the U.S. which meant that he was able to agree to the suggestion that he remain on in employment pending the full return of Mr. O’Shea.

Having regard to the background to these events I find that the decision to retain the services of Mr. X was unplanned and occurred as a result of factors which were beyond the control of the respondent and unconnected with the complainant’s return to work. In summary I find that whilst the initial employment of Mr. X may have been partially due to the respondent’s maternity leave, his subsequent retention was unconnected to any matter relating to the complainant but was a reaction to an unforeseen and undoubtedly traumatic sequence of events.

I accept the contention of the complainant that the combination of Mr. X’s continued employment and Ms. Z ’s full-time role has impacted to a certain extent on her earning capacity. I also partly accept the respondent’s argument that other elements such as the reduction in Department of Agriculture testing requirements were also factors in lessening earnings capability. I find that these matters, when combined with the stated principle of the respondent to provide work in the first instance to those staff that they considered to be employees, are all elements leading to the reduction of earnings on the part of the complainant. I have considered these factors in the light of the principles outlined in the Madarassy case above. I find that while the complainant may well have suffered a reduction in earnings, this was due to factors which do not support the inference contended for by the complainant. Consequently, I find that the complainant has not established facts from which an inference of discrimination can be drawn with regard to this element of her complaint.

As part of her case in support of her complaint that she was discriminated against on the grounds of gender and family status, Ms Nowacki cites two alleged remarks made by two different practice partners as supporting evidence in this regard. It was argued that the remarks, if made, could constitute evidence of discrimination or could have probative value as regards illustrating a certain disposition regarding the other issues encompassed by the complaint. Mr. Kavanagh stated in evidence that he could not recall such a conversation and Mr Wall in his evidence denied making such a remark. The complainant’s submission referred to the case of Gardiner v Mercer Human Resource Consulting (DEC-E2006-007) in which it was stated:

The Court “must always be alert to the possibility of unconscious or inadvertent discriminationand mere denials of a discriminatorymotive, in the absence of independent corroboration, must be approached with caution.”

The remark attributed to Mr. Kavanagh preceded the employment of Ms. Z in June 2014 and as such is outside the cognisable period for this complaint.   With regard to Mr. Wall’s remark, I note that he strongly contests that he asked Ms. Nowacki if she intended having more children. I am therefore faced with two directly conflicting accounts and I cannot resolve this conflict to the extent of stating that the remark, if made, is capable, by itself, of supporting the complaint to the extent that the complainant has established a prima facie case of discrimination on the grounds of family status.

No direct evidence was offered in relation to the element of the complaint regarding harassment as defined in Section 14A(7)(a) of the Act.

In summary therefore, I find that the complainant has not established facts from which it may be inferred that she has suffered discrimination on the grounds of gender or family status.

Complaint No. CA-00000048-001:   Having carefully considered all the evidence and submissions and for the reasons set out above I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender or family status. The complaint therefore fails.