ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024771
Parties:
| Complainant | Respondent |
Anonymised Parties | An Office Manager | An Animal Welfare Charity |
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-00031411-001 | 07/10/2019 |
Date of Adjudication Hearing: 15/01/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Linked Case
Adjudication ADJ-00022379 - a complaint under Section 30 & 31 of the Maternity Protection Act,1994 against the same Respondent was linked to this complaint. Evidence on both Complaints was heard together on the 15/01/2020.
For the record this Adjudication decision – Adj 24771 concerns the Section 77 Employment Equality Act, 1998 complaint - CA-00031411 -001
Background:
The issues in contention concern a claim of alleged Discrimination on grounds of Gender, Conditions of Employment and Discriminatory Dismissal -all contrary to the Employment Equality Act,1998. The Complainant was an Office Manager and the Respondent an Animal Welfare Charity. |
1: Summary of Complainant’s Case:
The Complainant commended employment as Office Manager with the Respondent on the 14th July 2018. In mid-August 2018 she commenced her Maternity leave with an approximate due date of return to work of in or about March 2019. On the 15th April 2019 the Complainant contacted the Respondent regarding her return to work. A non-committal reply was received from the Respondent on the 6th May. The Complainant again e mailed the Respondent on the 21st May 2019 but received no reply. In this e mail the Complainant had referred to the possibility of her referring a formal complaint to the WRC. As no replies were forthcoming she made her formal WRC complaint on the 12th June 2019. Nothing further was heard from the Respondent until a letter dated the 6th August 2019 in which she was informed that she was being made Redundant. The Complainant strongly contended that she had suffered Gender Discrimination (A female returning from Maternity Leave) and most especially a Discriminatory Dismissal on the grounds of being refused a return to work coupled with a spurious claim of Redundancy. There had been no consultation, of any nature with her, regarding her position and the allegedly spurious Redundancy decision was taken without any opportunity for her to have an input. It was grossly Discriminatory and merited an exemplary compensation award. Legal arguments and case precedents were cited in the Complainant’s favour. |
3: Summary of Respondent’s Case:
The Respondent is a very small Animal Welfare Charity. It had two employees, the Complainant and a Field Worker. During her Maternity leave the Organisation had occasion to examine the function and role of the Office Manager. It was obvious to the Board that the position did not have a proper economic rationale and was unnecessary for an organisation of their small size. In addition, the Charities Regulator had also questioned the need to have a position of this nature in such a small organisation. Accordingly, the Board of the Organisation had met on the 29th June 2019 and again on the 13th July to consider the Office Manger position. It was their unanimous decision that the position was not required and the incumbent, the Complainant, was made Redundant. The Complainant was informed of this decision by letter of the 6th August. All monies due to her were paid. The decision to make the Complainant Redundant was a purely business decision, there was no economic justification for the job position in such a small organisation. Her Maternity leave or her Gender had nothing to do with the decision. There was no Discrimination as understood by the Employment Equality Act., 1998.
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3: Findings and Conclusions:
3:1 The relevant Law The relevant Law in this case is the Employment Equality Act,1988 with some guidance from the Redundancy Payments Act, 1967 and the Unfair Dismissal Act, 1977. 3:2 Burden of Proof Section 85(a) of the Employment Equality Act establishes that the Complainant establish, firstly, a prima facie case of discrimination – this does not have to be a proven case but an inference of sufficient weight to require the Respondent to prove, the bear the Burden of Proof, that Discrimination did not occur. Case law is well established in this area – Mitchell v Southern Health Board (DEE2/1999) and Dublin Corporation v Gibney EES/1986 being landmark cases.
3:3 The Grounds of Discrimination claimed 3:3:1 Gender The essence of Gender Discrimination is that a Complainant being of one gender, in this case female, was treated less favourably than a person of another Gender, generally a Male person, might be. In this case the Complainant was female returning from a Maternity leave. She was not allowed to return to work. Case law is very strong in this area both in Ireland and from the ECJ. The case of Mitchell v Southern Health Board (DEE2/1999) discusses the issue at length as does Bailey Gibson Ltd v Mathan [1998} ELR51. Put simply if the Complainant had been a male she would not have been on Maternity Leave. The refusal to allow her back to work was accordingly Discriminatory on the Gender Ground. 3:3:2 Conditions of Employment Here the arguments run parallel to the Gender Discrimination grounds above and the case has to be seen to proven. This aspect of the claim was not vigorously pursued. 3:3:3 Discriminatory Dismissal. This was the main aspect of the Complaint. The Complainant alleged that her Dismissal had been prompted, amongst other matters, principally by her taking of a Maternity protection claim in July 2019 (the subject of parallel Adj 22379). The evidence on this aspect of the complaint was contested between the parties. Background issues were relevant, especially the corporate governance travails of the Organisation during the period. It has to be stated that the Organisation was of a very small size. The Complainant had been recruited by the former Chairperson, Ms Xa, who had been replaced by the current Chairperson, Ms Xb. It was obvious that this had been an unpleasant period in the history of the organisation and this was compounded by the regulatory Audit from the Charities Regulation in early 2019. It was contended by Respondent witnesses that the Charity Regulator had recommended that the organisation shut down for a period of one month to allow, it appeared to the Adjudicator, proper governance and stability be re-established following the very contested departure of Ms. Xa. As an aside it was alleged that Ms. Xa had taken most of the Organisation’s files away with her on her departure. The current Chairperson, Ms Xb, in her oral evidence effectively stated that the very survival of Organisation had been in question at this time – the early Summer of 2019. The essence of the Respondent argument was that the Organisation was in real danger of folding up, they had reviewed the structures and the need for an Office Manager was simply not there. From the oral evidence of Ms. Xb I did not come to the view that the Redundancy or Dismissal was in any way a vindictive retaliation to the Maternity protection complaint as was alleged by the Complainant. What the Oral evidence did point to was a very small voluntary Organisation facing an employment issue that was beyond the competence of the decision makers. The delays in reply to the Complainant from April until the 6th August letter were hard to understand. The Board meetings of the 29th June and the 13th July 2019 where the issue was discussed did not appear to have had any input from the Complainant. Under the Redundancy Payments Act, 1967 a basic level of consultation with a prospective redundant employee is a requirement. None of this happened here. Procedurally the Respondent rebuttal case had serious shortcomings and if considered under the Unfair Dismissals Act,1977 or the Redundancy Payments Act 1967 (albeit the Complainant does not have the required Redundancy service) it would be fatally flawed. However, the complaint was not under either of these Acts and rested on a Discrimination basis under the Employment Equality Act,1988. The key question is accordingly one of considering if there was a Discriminatory Dismissal as understood from an Employment Equality perspective. A key issue is one of dates involved. The Complainant indicted that she was available to return to work post Maternity on the 13th May 2019. This did not happen, for various reasons advanced by the Respondent. The right to Return to Work from Maternity can only, as sated above, apply to a female. Good practice would have had the Complainant return to work and then have Redundancy discussion commence. The views of the Complainant could have been canvassed. That this did not happen was probably due to the lack of expertise of the Respondent Chairperson, the on-going and fraught issue of the former Chairperson & her disputed removal and the Charities Regulator Audit. The issue of the Return to Work is addressed in Adj 00022379. The issue of Discriminatory dismissal, as a follow on, has then to be seen separately. The Complainant made much store of the alleged Retaliatory actions of the Respondent to the WRC claim under the Maternity Protection Act, 1994. On the evidence I did not see this as a realistic ground. The ending of employment was justified by the Respondent on Redundancy Grounds – Gender did not feature as far as they were concerned. In their favour are the facts of the dire situation of the Organisation and the Charities Regulator. On balance and having considered all the evidence, both Oral and Written, I had to come to the conclusion that the ending of employment was a business necessity for the Organisation. I did not think that Gender, the difference between male and female, was a key factor. The role of Office Manager for a two-employee charity with activity levels as low as described in evidence simply did not make sense. In conclusion I had to find that the Dismissal, while very badly handled, was not a Gender based Discriminatory Dismissal. 3:4 Final Conclusions. I find that the Complaints of Discrimination on Gender Grounds regarding the Return to Work are well founded although in considering Redress notice has to be taken of any redress in the parallel Maternity Protection complaint under Adj 22379. The Complaint of a Discriminatory dismissal I did not feel was sufficiently well grounded in a pure Discrimination sense. The complaint of Discrimination under Conditions of Employment – Return to Work - had to be seen as largely determined by the first Gender Complaint. It was accepted as being well founded. Accordingly, Redress is due for the two elements of Gender Discrimination and Conditions of Employment.
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4: 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.
Discrimination was satisfactorily established on the Ground of Gender and Conditions of Employment. I note that Redress was also awarded under Adj 22379, the parallel Maternity Protection Act,1994 complaint.
As provided for in Section 82 1(c) I award a Compensation lump Sum of €5,000 for Gender Discrimination and €1,000 for Discrimination in Conditions of Employment.
These awards are for Breach of Statutory Rights and not for any Renumeration issues.
Taxation, if any, of these awards is to be considered in conjunction with the Revenue Commissioners.
Dated: 7th May 2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
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