CORRECTION ORDER
ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998 and SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision ADJ-00020364 issued on 08/05/2020 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020364
Parties:
| Complainant | Respondent |
Anonymised Parties | A Duty Manager | A Hotel |
Representatives | McIntyre O'Brien Solicitors | Respondent Manager |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00026882-001 | 07/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00026882-002 | 07/03/2019 |
Date of Adjudication Hearing: 17/12/2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was a Duty Manager in a hotel. Her manager was concerned that she was intoxicated at work. The complainant claimed that her behaviour was as a result of a miscarriage which the respondent failed to consider when dismissing her. The complainant also alleges a lack of appropriate procedures. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent as Duty Manager in June 2018 and was dismissed on 12th November 2018. The complainant completed her work on 9th November 2018 but began to feel ill later that evening. She believes she suffered from a miscarriage. The complainant attended work on 10th November. She was bleeding severely and was emotional while carrying out her responsibilities. There was a wedding in the hotel on that day and she did not want to let her employer down. At one stage, due to bleeding, she had to change her clothes and sit in the car. When she returned she met her manager Mr A who asked if she was ok and she replied that she was fine. The complainant returned to work on 11th November but could not complete her responsibilities and she told her supervisor that she had to go home. She exchanged some texts with her work colleagues saying she felt unwell and that she would see them the following week at work. The complainant also sent a message to Mr A saying that she was unwell due to having been at a party. The complainant accepts this was wrong information but she did not feel comfortable explaining to him that she was suffering from a miscarriage. Later that afternoon she sent a message to Mr A saying that she had suffered from a miscarriage. Mr A replied that the she had said she was at a party and if she had miscarried he would need proof from a doctor. The complainant replied that she did not go to a doctor. Mr A told her to return to work the next day. On her arrival to work she met with Mr A and a second employee from accounts. Mr A informed her that she was intoxicated at work at the weekend and the he had no choice but to dismiss her with immediate effect. She was informed that she would be paid one week’s notice. The complainant was in shock and left the hotel. On 29th November the complainant attended her GP who certified her as having had ‘a probable miscarriage’. It is submitted that the respondent failed to follow fair procedures in relation to investigating whether the complainant had suffered a miscarriage prior to dismissing her, despite the fact that the complainant had informed her manager. The complainant was not told that she was being invited back to work for the purposes of a disciplinary hearing she was not afforded natural justice. In circumstances where the complainants’ dismissal is linked to her miscarriage her dismissal is discriminatory. |
Summary of Respondent’s Case:
The complainant had an appraisal on 12th October which was mostly positive. The only negative related to her presentation and her uniform which was untidy and looked like she had been out the night before. On 17th October the complainant left without notifying anyone. On 21st October Mr A met with her concerning this and she claimed she had had her period and needed to change. Mr A believed that this was said to shock him. On the 10th of November when the complainant returned from the period of time in which she was missing she stood beside Mr A giggling. Subsequently other members of staff were looking for her but she could not be found. Later Mr A found her in the back office and she was laughing. Later at the wedding Mr A’s father said he witnessed the complainant walking into a pole and others said she was giving out free drinks. Mr A was at this stage convinced that the complainant was intoxicated, and he made the decision to dismiss the complainant for that reason. Regarding the complainant’s claim that she was taking strong pain killers which may have caused her to act strangely it is the respondent’s position that the handbook is clear in relation to the use of prescribed drugs while at work. |
Findings and Conclusions:
The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, unreported, High Court, McGovern J. (24th July 2009), provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same. In Brannigan McGovern, J said in relation to the completion of a form EEI: “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.” A similar approach was adopted by Hedigan J in Clare County Council v The Director of Equality Investigations [2011] IEHC 303. These authorities indicate that statutory bodies should not apply a more stringent approach to the amendment of originating forms than is applied by the ordinary courts to the amendment of pleadings. Accordingly, I am satisfied, that incidents contained in the claim form relate to allegations of discrimination on the grounds of gender and I am thus satisfied that I have jurisdiction to investigate matters referred therein. Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both the complainant and the respondent. The section shifts the burden of proof to the respondent where facts are established by a complainant from which it may be presumed that there has been discrimination in relation to him or her. There is no dispute that the complainant informed Mr A, in advance of the meeting convened at which she was dismissed, that she believed she had suffered a miscarriage and that this explained the behaviour over which he was concerned. The respondent did not adequately investigate this defence and instead, chose to disbelieve the claim based on previous experience. A properly conducted investigation may have resulted in a timely medical opinion, which, if corroborating the complainant’s claim of a miscarriage, would most likely have resulted in her not losing her job. In my view, the failure to adequately investigate the medical issues raised is sufficient prima facie evidence of discrimination on the grounds of gender and the burden of proof therefore shifts to the respondent to show that this was not a discriminatory dismissal. Mr A, in his evidence, confirmed that he had decided to dismiss the complainant before he met with her. Neither did he give the complainant details of the allegations in advance of the hearing, or afford the complainant an opportunity to be represented at the hearing, and finally, he did not adequately consider the explanation given. These are clear breaches of natural justice and the entitlement of the complainant to fair procedures. In the circumstances where the respondent did not conduct the investigation and disciplinary process in a fair manner I find that the respondent is unable to show that the dismissal was not discriminatory and therefore the complainant was discriminated against. Minimum Notice. The claim for the payment of minimum notice is taken under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and I am required to look at the complainant’s statutory entitlements under this Act. As the respondent paid the statutory minimum notice I find that the Act was not contravened.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 CA-00026882-001 – Minimum Notice I find that the Act was not contravened. CA-00026882-002 – Employment Equality Act I find that the complainant was discriminated against and, in accordance with s.82 of the Act, I order the Respondent pay the Complainant: The sum of €10,000 in compensation for the discrimination on grounds of gender. |
Dated: 8th May 2020
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Equality. Failure to investigate, failure to use appropriate procedures. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020364
Parties:
| Complainant | Respondent |
Anonymised Parties | A Duty Manager | A Hotel |
Representatives | McIntyre O'Brien Solicitors | Respondent Manager |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00026882-001 | 07/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00026882-002 | 07/03/2019 |
Date of Adjudication Hearing: 17/12/2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was a Duty Manager in a hotel. Her manager was concerned that she was intoxicated at work. The complainant claimed that her behaviour was as a result of a miscarriage which the respondent failed to consider when dismissing her. The complainant also alleges a lack of appropriate procedures. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent as Duty Manager in June 2018 and was dismissed on 12th November 2018. The complainant completed her work on 9th November 2018 but began to feel ill later that evening. She believes she suffered from a miscarriage. The complainant attended work on 10th November. She was bleeding severely and was emotional while carrying out her responsibilities. There was a wedding in the hotel on that day and she did not want to let her employer down. At one stage, due to bleeding, she had to change her clothes and sit in the car. When she returned she met her manager Mr A who asked if she was ok and she replied that she was fine. The complainant returned to work on 11th November but could not complete her responsibilities and she told her supervisor that she had to go home. She exchanged some texts with her work colleagues saying she felt unwell and that she would see them the following week at work. The complainant also sent a message to Mr A saying that she was unwell due to having been at a party. The complainant accepts this was wrong information but she did not feel comfortable explaining to him that she was suffering from a miscarriage. Later that afternoon she sent a message to Mr A saying that she had suffered from a miscarriage. Mr A replied that the she had said she was at a party and if she had miscarried he would need proof from a doctor. The complainant replied that she did not go to a doctor. Mr A told her to return to work the next day. On her arrival to work she met with Mr A and a second employee from accounts. Mr A informed her that she was intoxicated at work at the weekend and the he had no choice but to dismiss her with immediate effect. She was informed that she would be paid one week’s notice. The complainant was in shock and left the hotel. On 29th November the complainant attended her GP who certified her as having had ‘a probable miscarriage’. It is submitted that the respondent failed to follow fair procedures in relation to investigating whether the complainant had suffered a miscarriage prior to dismissing her, despite the fact that the complainant had informed her manager. The complainant was not told that she was being invited back to work for the purposes of a disciplinary hearing she was not afforded natural justice. In circumstances where the complainants’ dismissal is linked to her miscarriage her dismissal is discriminatory. |
Summary of Respondent’s Case:
The complainant had an appraisal on 12th October which was mostly positive. The only negative related to her presentation and her uniform which was untidy and looked like she had been out the night before. On 17th October the complainant left without notifying anyone. On 21st October Mr A met with her concerning this and she claimed she had had her period and needed to change. Mr A believed that this was said to shock him. On the 10th of November when the complainant returned from the period of time in which she was missing she stood beside Mr A giggling. Subsequently other members of staff were looking for her but she could not be found. Later Mr A found her in the back office and she was laughing. Later at the wedding Mr A’s father said he witnessed the complainant walking into a pole and others said she was giving out free drinks. Mr A was at this stage convinced that the complainant was intoxicated, and he made the decision to dismiss the complainant for that reason. Regarding the complainant’s claim that she was taking strong pain killers which may have caused her to act strangely it is the respondent’s position that the handbook is clear in relation to the use of prescribed drugs while at work. |
Findings and Conclusions:
The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, unreported, High Court, McGovern J. (24th July 2009), provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same. In Brannigan McGovern, J said in relation to the completion of a form EEI: “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.” A similar approach was adopted by Hedigan J in Clare County Council v The Director of Equality Investigations [2011] IEHC 303. These authorities indicate that statutory bodies should not apply a more stringent approach to the amendment of originating forms than is applied by the ordinary courts to the amendment of pleadings. Accordingly, I am satisfied, that incidents contained in the claim form relate to allegations of discrimination on the grounds of gender and I am thus satisfied that I have jurisdiction to investigate matters referred therein. Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both the complainant and the respondent. The section shifts the burden of proof to the respondent where facts are established by a complainant from which it may be presumed that there has been discrimination in relation to him or her. There is no dispute that the complainant informed Mr A, in advance of the meeting convened at which she was dismissed, that she believed she had suffered a miscarriage and that this explained the behaviour over which he was concerned. The respondent did not adequately investigate this defence and instead, chose to disbelieve the claim based on previous experience. A properly conducted investigation may have resulted in a timely medical opinion, which, if corroborating the complainant’s claim of a miscarriage, would most likely have resulted in her not losing her job. In my view, the failure to adequately investigate the medical issues raised is sufficient prima facie evidence of discrimination on the grounds of gender and the burden of proof therefore shifts to the respondent to show that this was not a discriminatory dismissal. Mr A, in his evidence, confirmed that he had decided to dismiss the complainant before he met with her. Neither did he give the complainant details of the allegations in advance of the hearing, or afford the complainant an opportunity to be represented at the hearing, and finally, he did not adequately consider the explanation given. These are clear breaches of natural justice and the entitlement of the complainant to fair procedures. In the circumstances where the respondent did not conduct the investigation and disciplinary process in a fair manner I find that the respondent is unable to show that the dismissal was not discriminatory and therefore the complainant was discriminated against. Minimum Notice. The claim for the payment of minimum notice is taken under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and I am required to look at the complainant’s statutory entitlements under this Act. As the respondent paid the statutory minimum notice I find that the Act was not contravened.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 CA-00026882-001 – Minimum Notice I find that the Act was not contravened. CA-00026882-002 – Employment Equality Act I find that the complainant was discriminated against and, in accordance with s.82 of the Act, I order the Respondent pay the Complainant: The sum of €10,000 in compensation for the discrimination on grounds of gender. |
Dated: 8th May 2020
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Equality. Failure to investigate, failure to use appropriate procedures. |