Complainant

Respondent

Anonymised Parties

Food and Beverage Assistant

A Restaurant

Representatives

Appeared in Person

Domenika O Sullivan, HR Suite

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028461-001

16/05/2019

This is a claim or Pregnancy related dismissal which is advanced by the complainant and denied by the Respondent. The Complainant is Lithuanian and presented as a Lay Litigant. The Respondent, a small business operated by two Lithuanian nationals was represented by the HR Suite.

At the end of the hearing, I sought a copy of the Notification of Pregnancy Policy relied on by the respondent. I asked the complainant to provide copies of emails/texts she had referred to.

Both parties furnished documents post hearing which were copied to each party.

The Complainant had not sought additional accommodation at hearing.

The Respondent business is a Restaurant, owned and operated by two Lithuanian Nationals. The Respondent has denied the submitted claim for Unfair Dismissal and instead has submitted that the complainant’s employment was fairly terminated during her extended probation period due to poor performance and without knowledge of her pregnancy.

The Respondent raised a preliminary issue.

They submitted that the complainant, a food and beverage assistant was hired in August 2018 and her employment terminated on 7 January 2019. The Respondent first became aware of the complainants’ pregnancy on receipt of the formal complaint from the WRC in May 2019. The Respondent denied any organisational awareness of the complainant’s pregnancy at any time during her employment and particularly denied that the owners or the owner’s wife were aware of her condition. In addition, the complainant had not provided any documents in support of her condition.

The Respondent disputed that her dismissal was linked to her Pregnancy and the complainant did not have 12 months service on which to properly ground a complaint under Unfair Dismissal Legislation.

Substantive Case:

The Complainant started work on 27 August and was subject to probation. There were problems in the complainant’s work

1.      Using her phone at work

2.      Late arrival and early departure

The amended attendance was reflected in rosters submitted at hearing.

On 26 October 2018, an office day for the respondent, the complainant was informed that her probation was to be extended until 27 February 2019. This was accompanied by 1:1 discussion led by the owner, where improvements were sought. The complainant explained that she had a commitment to bring her partners child to school.

The Respondent had not retained notes of the meeting but submitted that the complainant did not respond to the notification of the extension. The Complainant continued to disregard the official finish times.

The Complainant was on annual leave December 31- January 7, 2019.

The Respondent had an issue on “cash handling “with another member of staff on 30 December 2018. This did not involve the complainant.

Later that evening, the complainant posted a confrontational message to the respondent on social media in Lithuanian. She indicated that she may not return to work after her holidays and accused the Respondent of “being paranoid, hysterical, insulting, scolding and always being unhappy “

The Respondent received further texts from the complainant on January 2, 2019 and the complainant was requested to clarify her intentions regarding leaving employment. On 4 January 2019, she indicated that she may be resuming work.

On the Complainants return to wok on January 7, she was requested to explain the social media posting during a meeting. The Respondent was unhappy with her response and decided to terminate her employment on performance issues and disrespect for her employer. The Complainant made no response outside seeking a letter for Department of Social Protection, which was provided.

The Respondent hired a replacement worker on January 8, 2019. This employee notified the Respondent of her pregnancy on 28 January 2019 and has remained in employment with the respondent. Her due date being September 20, 2019.

Evidence of Owner:

Mr O told the hearing that he was mostly engaged in Chef work but explained that he became irritated when the complainant took breaks at 11 am, one-hour post commencement. He was unhappy with many aspects of her work and gave her written notice of an extension in her probation on October 26. She did not respond.

He was shocked when he saw the social media posting on December 30 and understood that the complainant was resigning her position. He asked for clarification in the form of a resignation letter. but nothing followed.

The Complainant came back to work and didn’t give any explanation for her behaviour on social media. Together with the co-owner, they decided to terminate the complainant’s employment as a failed probation.

He denied knowledge of pregnancy and submitted that he understood that he had granted the complainant time off to attend hospital for an illness not a pregnancy.

The Respondent submitted that Section 3 of the Unfair Dismissals Act 1977 prohibits the application of the Act to the circumstances of an employee on probation, which is specified in the contract of employment.

The Respondent went on to state the law in Section 6(2) of the Act

“… 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 of the following ….

6(2) (f) Pregnancy of the employee or matters connected therewith

The Respondent submitted that the Respondent was not aware of the Pregnancy and was entitled to terminate the employment of an employee who was not working out. Her dismissal was not wholly or mainly because of her pregnancy.

The Respondent went on to rely on an EAT case of Barbara Tarczewski v Shannon view Retail Ltd UD 1672/2014, where knowledge of Pregnancy post dismissal was insufficient to make out a case for a pregnancy related dismissal.

The Respondent furnished a copy of the Policy on maternity leave post hearing.

The Complainant is a Lithuanian national who knew the Respondent owners through previous work in a Hotel. She commenced work as a Food and Beverage assistant on 27 August 2018 and worked until her dismissal on 7 January 2019. She worked a 39-hour week for €10.50 per hour.

The Complainant submitted her complaint of dismissal due to pregnancy on 16 May 2019 and sought the remedy of re-instatement. She explained that she had not worked since her dismissal and had been sick for 21 weeks. No documentation was submitted to accompany this development and she provided two certificates for courses undertaken in February and May 2019.

The Complainant submitted that she had been dismissed due to a failed probation. While her contract stated that her probation was of 3 months duration, this had expired at the time of her dismissal.

I believe it important for me to reflect the complainants presiding written complaint lodged from the outset.

She submitted that she was called into the office for a meeting at the end of her shift on 7 January 2019 and informed that she had not passed her probation. No reasons were given. She was handed a letter and paid for one week’s annual leave.

The Complainant wrote that the owner’s wife and floor staff knew of the pregnancy and “I was going to inform the owners later that week after the first scan “

The Complainant asked for a letter stating the reasons for her dismissal and was informed that her probation had been failed. The Complainant submitted that there were no disciplinary problems or sanctions before her dismissal and she contended that her dismissal was directly attributable to her pregnancy.

Complainants Evidence:

The Complainant knew the owners from a Hotel. There were no disciplinary issues. During November 2018, she began to feel sick and the owner’s wife suggested she take a pregnancy test which proved positive in November 2018. She informed her colleagues and a customer of her pregnancy by November end, 2018.

The Complainant was not aware that the Respondent had any difficulties with her and she had no recall of the October meeting and had not received a notification of a probationary extension. She had asked for joint meetings with the owners.

The Complainant submitted that she had run into one of the owners in the kitchen and he told her that he had heard news of her pregnancy. She requested time off to go to the Hospital for December 14 which she followed up by text. She stated that she had two appointments on that day and had specified that these were pregnancy related (scan). She had not wanted to disclose her condition earlier as she had previously miscarried on 12 weeks gestation.

She worked alone frequently apart from her colleague , Ms A who was subject to an incident with the owner on December 30 .She was not aware that she had left .She confirmed that she had messaged the owner during the evening of December 30 , she wanted to back up her colleague , whom she believed had been wrongly accused of mis handling cash , but was unaware of the impact of this message on him. She had not raised a grievance regarding her working life.

The Complainant confirmed that she had insisted that she intended on returning to work in early January post her annual leave and she thought the 20-minute meeting at conclusion of business on the 7th January was to address issues involving Ms A and not her. The Complainant stated that she intended on returning to work to be able to receive maternity leave later in her pregnancy. She was aware of the requirement to notify her employer of her pregnancy and believed that they were aware from late November. She had not expected to be dismissed and replaced one day later.

In addressing her loss and mitigation, the complainant submitted that she had worked in Ireland for 13 years but had been unable to secure maternity benefit as she had been unable to satisfy the stated criteria of working 28 out 52 weeks and she had been unaware of this stipulation. Her baby girl was born on 15 July 2019. She is now available for work. She had received €20 per week from DSP.

During cross examination, the complainant denied not putting the respondent on notice of her pregnancy and stated that she had told the owner about her previous miscarriage at 12 weeks. The Complainant also distinguished the events of the social media posting from her pregnancy

The Complainant sent in some comments post hearing on documentation furnished by the respondent. She re-affirmed that she had not wanted to tell the owner of her pregnancy until after her first scan which was scheduled for 10 January 2019. She also included some texts between her colleagues which referred to an earlier notification of pregnancy.

The Complainant commented on the start time being consistent with service times and there was no provision for preparation or set up times instilled in the published roster.

I have given some thought to both parties oral and written submissions in this case. I have had regard for the extra documentation submitted and exchanged post hearing.

The Complainant has submitted that but for her pregnancy, her period of employment would not have been curtailed in summary fashion in January 2019. The Respondent has submitted that the complainant is not entitled to the protection of the legislation of Unfair Dismissal as she was on probation and had not informed the respondent that she was pregnant during her employment.

Section 6 of the Unfair Dismissals Act 1977 provides that:

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:

S. 6(2)(f) an employee’s pregnancy, attendance at ante natal classes, giving birth or breastfeeding or any matters connected therewith.

Exclusions.

2

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 .

The Law in Ireland carries strong legal protections for pregnant workers. A potential complainant is permitted to advance a complaint of unfair dismissal in accordance with Section 6 of the Act, while not having to have the required 12-month service to ground a claim.

A Dismissal is automatically unfair if the complainant is dismissed for reasons of pregnancy or connected matters. The burden of proof is on the respondent to prove, on the balance of probabilities, that the dismissal was unrelated to the pregnancy.

From the outset of this case, I was unhappy with the absolute dearth in contemporaneous paper work associated with the employment relationship at the centre of the case. I found that the complainant had a varied hours contract which seems to have been amended weekly.

The roster did reflect adjustments in both the start and finish times and recorded modifications in hours worked. I was dissatisfied that the Respondent had not visibly compiled or maintained a log of dialogue of interactions concerning the complainants ongoing performance. There were no documents opened to me in that regard. I noted that there were hand written modifications on the roster for several workers, however, the lions share of the modifications were attributed to the complainant and seemed to centre of staggered start and finish times for salary purposes.

I understand that this was a fledgling business, where both owners were working hard to lift the business, however, employing staff places a certain responsibility on an employer and records go to the heart of this responsibility. Section 1.1 of the staff handbook provides that “continual assessments “of performance accompany the span of work. I could not ascertain any formal record of this engagement outside of the Respondents clear recall that he had cause to appraise the complainant of her shortcomings some two months into her employment when he extended the probationary period. This was not accompanied by a performance improvement plan or notified targets of improvement. Instead, it appeared to me that the complainant was permitted to work on “as normal “from that day forward free from any counselling, pre-disciplinary intervention or disciplinary sanction.

I detected a high level of hostility between the parties at hearing and in the absence of formal records, I was required to probe the party’s evidence very carefully on how the complainant’s pregnancy interfaced with the 4.5 months of employment. I did not have the benefit of witnesses in this case and while the complainant submitted a copy of a text from a former colleague, I was unable to corroborate this text. In addition, I did not have the benefit of meeting the respondent’s wife to probe her recollection of events.

I immediately detected a high level of inconsistency in the complainant’s evidence. In her complaint to WRC, she indicated that she had not placed her employer on notice of her pregnancy prior to her dismissal. She said she wished to wait until her first scan was completed on January 10, 2019. In her direct evidence to the hearing, she countered this by insisting that she had told the respondent directly and that he was bound to have been informed by his wife, the instigator of the pregnancy test.

I asked the complainant if she aware of the company policy on notification of pregnancy? She said she was familiar with the Policy.

The Policy provides that:

A pregnant employee should advise her manager of her pregnancy as soon as possible in order that measures may be taken to protect her health and safety at work and that of her developing child. Notification of intention to claim maternity leave was to be in writing to a manager. The Policy was silent on time off for ante natal attendances but directed an employee to their Manager.

I have reflected on what both parties told me about how they approached the December 14 Hospital appointment. The Complainant did not link the appointment to her pregnancy in copies of the text sent and the respondent did not reflect his knowledge of same when time off (paid) was permitted. I have therefore   formed the view that the respondent was not on notice of the complainant’s pregnancy at that point.

I did not establish that the complainant took steps to notify the respondent of her pregnancy later in her employment. In Synergy Security Solutions ltd and Anna Dudek, UD 1853, the Labour Court determined that the complainant had not disclosed her pregnancy to her employer and that her pregnancy at 7 months gestation was not the reason for her dismissal. The Labour did not go any further into the reason for dismissal once that position was determined.

In Western Brand Group Ltd V Aneta Petrova, the Labour Court awarded compensation in the case of a dismissal following pregnancy related illness and miscarriage. In both cases, the Court scrutinised the organisational knowledge of the complainant’s pregnancy in the first instance.

I have sought to follow that lead and could not establish any reference to pregnancy by the complainant up to and including her penultimate day at work, December 30. I received an agreed translation of the text of the social media posting which the complainant sent to the respondent. It amounted to a tirade from her depicted as an unhappy employee and was highly critical and confrontational of the respondent’s approach to his business and the staff who worked there. By her own admission, the complainant told me that this had nothing to do with her pregnancy. I have reviewed this document as it contains an indication of the complainant’s intention to leave her employment due to her unhappiness there. I was struck by the complainant’s complete disregard for this development in the case. She confirmed that she sent the message but had clearly not dwelt on the impact of her actions towards her employer.

I appreciate that she thought that she was standing up for a colleague who she believed had been accused in the wrong, she has made no reference to her pregnancy whilst simultaneously referring to a vast array of operational shortcomings at the company. I can see that she was upset by her experiences at the business but did not channel these through any identified procedure. The Complainant was requested to clarify whether she was continuing in her work? and she did so on January 2 and 4 2019 when she sought her roster. It was important for me to note that the complainant was not placed on the roster for week commencing January 7, 2019. She was given a roster which centred on one day alone and she worked that day before her dismissal was confirmed. The Respondent had requested that she declare her clear intentions on whether she was staying on or leaving the employment.

I could not establish that the complainant shared details of her pregnancy directly with her employer at any time during her employment. I believe this case differs from Dudek as the complainant here did not deliberately hide her pregnancy but did not openly disclose her condition to her managers either.

Notwithstanding the dearth of documentary records of performance appraisal in the case, I deduced from evidence that both parties were deeply unhappy with each other in the workplace. The complainant said that she had requested joint meetings to ameliorate this unhappiness, but I could not see throughput here.

However, from the respondent’s evidence, I detected that the social media posting of December 30 was for him a deeply shocking experience. He felt greatly diminished by the criticisms levelled towards him and while he tried to obtain an explanation, he failed. Again, there was no reference to pregnancy by the complainant in the last 20-minute meeting prior to her dismissal on January 7, 2019. I appreciate that nobody kept notes of this meeting, but equally neither party referred to pregnancy being mentioned at this late juncture in the employment relationship.

I accept that the complainant had anticipated receiving a full statutory maternity benefit during her maternity leave as an employee of the respondent. She did not provide evidence of a refusal to grant this award, but she did attribute her taking the case to compensate for this vacuum in payment. She was very disappointed that her 13-year Irish employment history was insufficient on which to claim the benefit and she apportioned a high amount of blame for her exclusion towards the respondent on this count.

However, I must decide whether the complainant’s pregnancy or matters connected to it were the material cause of her dismissal?   I have not established evidence on the balance of probability which upholds that position. Her dismissal arose from a distinctly different and separate set of circumstances which were the topic of a poorly managed probation period. I strongly recommend that the Respondent commence a robust record management system into the future.

I accept that the complainant asserted that many people in the organisation knew of her pregnancy, but she has not, in my opinion proved this beyond assertion. I fully respect that she wished to manage the communication of her pregnancy considering an earlier reported miscarriage. I have also had regard for the respondent evidence on the complainant’s eventual successor who communicated her pregnancy and remained in employment.

Her claim for unfair dismissal on grounds of pregnancy cannot however now succeed. It was not the reason for her dismissal.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the claim for unfair dismissal on pregnancy grounds has not succeeded. It is not well founded.

Pregnancy Related Dismissal