FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : LAURENCE WALL, THOMAS O'SHEA & JOSEPH KAVANAGH TRADING AS MOYNE VETERINARY CLINIC (REPRESENTED BY DOROTHY DONOVAN B.L., INSTRUCTED BY FRIZELLE, O'LEARY, MCCARTHY SOLICITORS) - AND - NATASHA NOWACKI (REPRESENTED BY EMMA CASSIDY B.L., INSTRUCTED BY NIAMH MORIARTY & CO SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00000026 CA-00000048 The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts). The Adjudication Officer found that the Complainant had not established aprima faciecase in respect of either of her claims. Background This complaint is linked to ADE/16/51 where the Court determined that the Complainant was encompassed by the scope of the Act at all times material to her complaint. The Complainant was employed by the Respondent under a contract of employment from 2005 to May 2016. Her remuneration was by way of commission which was a percentage of the fee charged to the customers of the practice. The Complainant also caried out testing work on behalf of the practise, which was paid on a set fee basis by the Department of Agriculture. The Respondent has veterinary staff who are salaried, but the Complainant had requested that she be paid on a commission basis. It is the Complainant’s complaint that she was discriminated against by the Respondent and subjected to less favourable treatment when she returned from maternity leave in April 2015 and following a previous period of maternity leave. The Complainant lodged her claim with the WRC on the 4thOctober 2015. The cognisable period for the purpose of the Act is 5thApril 2015 to the 4thOctober 2015. In order for the Court to consider any possible acts of discrimination outside of that period it falls to the Complainant in the first instance to establish a breach of the Act within the cognisable period. A case management hearing was held on the 2nd December 2020 and the parties agreed to try and narrow the issues by identifying the facts that were not in dispute. A list of relevant facts was submitted to the Court by the Respondent and at the start of the Court hearing on the 29thJune 2021, the facts that were not in dispute or that the Complainant was not in a position to dispute, as they were not within her knowledge, were identified. It was agreed with the parties that the remaining facts that were in dispute would be dealt with in evidence to the Court. Summary of Complainant’s submission and evidence. Emma Cassidy BL on behalf of the Complainant submitted to the Court that the Complainant went on maternity leave in October 2014 and returned to work in April 2015. On her return to work there was a notable drop in the work available for her. Ms Cassidy BL submitted that a new male employee Mr Goggins had been brought into replace the Complainant when she went on maternity leave, and that he remained in position when the Complainant returned from her maternity leave. It was submitted on behalf of the Complainant that another female employee Natasha O’ Malley Moore was brought in fulltime even though the person she was replacing Sally Ryan had only worked part-time hours. Both Sally Ryan and Natasha O’ Malley Moore were salaried employees. It is the Complainant’s submission that as her complaint on the gender grounds relates to her pregnancy, she does not require a comparator. It is her submission that her work was significantly reduced resulting in a drop in her income and that this happened because she had taken maternity leave. It was submitted on behalf of the Complainant that she felt the drop in work was because the Respondent had brought in a male replacement who continued in employment when she returned from maternity leave. The Complainant also felt that the fact that the Respondent believed that she might take maternity leave again at some point in the future impacted on the work that was made available to her. In respect of her complaint on the family status grounds it is her submission that Don Goggins and Natasha O’ Malley Moore are her comparators as at the material time neither had a family. It is the Complainant’s submission that they were both provided with work that she had previously done and that this was because of her family status. The Complainant in her evidence to the Court confirmed that the nature of the work she carried out was mostly testing the herd, with a small amount of working arising from the small animal clinics and some farm work. In order to be paid the Complainant would record the work she did in a diary and then hand the diary in to a member of staff in the office who would price the work and arrange payment. It was the Complainant’s evidence that she informed the Respondent she was pregnant sometime in and around March 2014 so they would be on notice that she would not be able to do lambing. However, she continued to work nights until August 2014 and continued testing the herd until October 2014. It is the Complainant’s evidence that she had asked Mr Wall if she could do small animals in October 2014, but he responded by saying that she would be falling over by then. It was the Complainant’s evidence that Sally Ryan who worked part-time and mainly did the small animals clinic left in July 2014 and was replaced by Natasha O’ Malley Moore who worked fulltime. It was the Complainant’s evidence that she expressed concern about the fact that Natasha O’ Malley Moore was fulltime as she felt it would impact on the work available to her from the small animal’s clinic. The Complainant’s evidence was that she stopped doing evening clinics because Natasha O’ Malley Moore was there. The Complainant in her evidence to the Court disputed that she selected the work she did or that she was not available for work . In March 2015 prior to her return from maternity leave, the Complainant met with two of the Director’s and asked if she could finish work at 5.00pm every day instead of 6.00pm and work a four- day week Monday to Friday. It was her expectation that she would still be included in the Saturday rotation. It was the evidence of the Complainant that she was never put back on the Saturday rotation. The Complainant submitted that work was quieter when she returned from her maternity leave as Mr O Shea and Mr Goggins were both working and in fact Mr Goggins was working every day while Mr O Shea used to take a day off to do the factory work. It was the Complainant’s submission that they both did TB testing which impacted on the work available for her to do and that Mr Goggins also did some small animal work. It was the Complainant’s evidence that at the time there was no change in the TB testing, but that brucellosis testing changed as less of the herd was being tested. It was the Complainant’s evidence that there was about an 80% decrease in the numbers being tested for brucellosis and that work was pretty much gone by the time she went on maternity leave in 2014 . The Complainant’s evidence was that Mr Goggins being kept on impacted on the work available to her after her maternity leave and the fact that Natasha O’ Malley Moore was taken on fulltime meant that her small animal work disappeared. This impacted negatively on her earnings when she returned from maternity leave. Ms Cassidy BL drew the Court’s attention to the Complainant’s submission in respect of her earnings for the relevant periods in 2013 ,2014 and 2015 which showed a significant decrease in her earnings. The Complainant submitted that she earned €16,8484.20 in the relevant period in 2013, €12,497.26 in 2014 and €6,034.82 in the relevant period in 2015. The Complainant directed the Court to her Revenue returns for those years which she submitted supported her figures. It was put to the Complainant in cross examination by Ms Dorothy Donovan BL that the earnings figure for the three years up to 2015 which the Complainant submitted to the Court differed significantly from the figures she had given to the Adjudication Officer. It was the Complainant’s evidence that she did not have access to all the details and in a particular she did not have a break-down of the work paid by the Department. The Complainant accepted that the figures she submitted did not show a monetary value for the number of cattle tested. The Complainant accepted that her own figures showed that she had tested more cattle in 2015 than in any of the previous years referenced. It was put to the Complainant that she had removed the work diaries showing the work she had done for the period from the Respondent’s office. The Complainant in her evidence stated that they were her diaries. It was put to the Complainant that she would have received withholding tax certificates in respect of the work she had done for the Department so the figures in respect of the monetary value for that work were available to her. The Complainant accepted that she had removed the diaries and stated that her accountant would have had the supporting documents in respect of her earnings from the Department, but she had not sought same from her Accountant. The Complainant did not accept that she was absent from work for 10 days in September 2015 because of a kick from a horse it was her evidence that she was absent for 7/8 days. It was put to the Complainant that Mr O Shea will dispute the fact that he was back testing in December 2015. It was put to the Complainant that at first instance her evidence was that she heard he was back , her evidence now appeared to be that she knew he was back. The Complainant couldn’t remember whether she knew he was back or whether she had heard he was back. The Complainant accepted that Natasha O’ Malley Moore did not do TB testing and that brucellosis work had reduced to virtually nothing by the time she returned from maternity leave. The Complainant also accepted that there was no problem with farm- to- farm work. It was put to the Complainant that the Respondent had acquired a large new practice and that Mr Goggins carried out most of his work from the new practice. The Complainant did not dispute this. It was put to the Complainant that Mr O Shea was not fully back working in the practice until April 2016. The Complainant stated that she did not know when he was fully back to work, she just knew he was back. It was put to the Complainant that there are four separate times for the small animal clinic, and one was a 5.00pm. It was the Complainant’s evidence that there were three clinics not four, but she accepted that there was a clinic at 5.00pm. Ms Donovan BL put it to the Complainant that one of the reasons she was not asked to do that clinic after her return from maternity leave was that she had sought to finish work at 5.00pm every day and that had been facilitated. It was the Complainant’s evidence that she never said she would not do the 5.00pm clinic. It was put to the Complainant that the Respondent’s evidence will be that the reduction in her earning arose from the fact that at her request she was working less hours and that there was a reduction in the brucellosis work arising from decisions made by government. It was also put to the Complainant that Mr Goggins had been brought in to cover Mr O Shea. The Complainant did not accept either of those statements. In response to questions from the Court in respect of the act of discrimination on the grounds of gender within the cognisable period the Complainant stated that her workload was severely reduced when she returned from maternity leave. It was her evidence that this reduction was linked to her gender on the basis that one of the Directors had asked her if he needed to get one or two vets when she told him she was going on maternity leave. It was her evidence that when she told him she would definitely be back he told her she did not have to do castrations as she had had a caesarean section. In respect of her claim of discrimination on family status the Complainant could not identify an act of discrimination within the cognisable period. In respect of her earnings the Complainant accepted that she had sought reduced hours and that that would lead to reduced earnings. However, she felt that she did not get as many Saturdays as she wanted. Ms Cassidy BL on behalf of the Complainant submitted that a pregnant worker who returns from maternity leave is entitled to return to the same work she had prior to going on maternity leave. The Complainant was available for work and the workload available for her reflected more than just the reduction in hours that she had sought. It was Ms Cassidy’s submission that women are not prevented from seeking an amelioration of working hours when they return from maternity leave. It appears to the Complainant that assumptions were being made about her availability and that Mr Goggins was brought in to replace her on maternity leave, but he was not let go when she returned. This coupled with the fact that there was now a fulltime vet doing the small animals clinic meant that she returned to a completely different position to the one she had left. Summary of Respondent’s submission and evidence Dorothy Donovan BL on behalf of the Respondent submitted that the advertisement to fill the vacancy arising from the departure of Sally Ryan was placed in the journal on the 28thMay 2014. The advertisement stated that they were looking for a fulltime vet for the small animal clinic. It was open to the Complainant to apply for that post, but she chose not to . At the time that post was advertised the Respondent was not aware that the Complainant was pregnant. The Complainant did not raise any issue at the time about the fact that the post was going to be filled as a fulltime position. Mr Goggins was not recruited to cover the Complainant’s maternity leave he was initially brought in to cover for Mr O Shea who at short notice had to have an operation on his shoulder. Mr Goggins plan was to provide short term cover as he was due to emigrate to the USA where he already had a job lined up. However, Mr O’ Shea wife became seriously ill and subsequently died, Mr O’ Shea at the time had a young family and for a period of time was not available to the practice. Mr Goggins had some difficulties with his travel plans and stayed on to cover Mr O’ Shea’s absence. The Respondent subsequently acquired another practice and Mr Goggins mainly worked there. The Complainant indicated that the location of the new practice was not convenient for her in terms of the areas to be covered. Ms Donovan BL submitted that there was a significant drop in brucellosis testing with that work coming to an end in 2015 and this impacted on the Complainant’s workload and the work that she had traditionally done. However, this change arose from government policy and a successful eradication programme and would have occurred regardless of whether or not the Complainant went on maternity leave . As the Complainant had sought to be paid on a commission basis as opposed to being salaried staff the change was going to impact her earning capacity. In respect of the small animal clinic the Complainant had previously done the 5.00pm clinic on numerous occasions but on her return from maternity leave had requested that she finish work at 5.00pm therefore, she was no longer available for that work which would also have a knock-on effect on her potential earnings. Mr O Shea one of the owners of the practice went into evidence on behalf of the Respondent. It was his evidence that part of his role was the day-to-day management of the practice. Sally Ryan informed them in early May 2014 that she was leaving. On the 28thMay 2014 they place an add in the Irish Veterinary journal looking for a fulltime vet. The reason they looked for a fulltime vet was that the small animal part of the practice was growing. It was Mr O’ Shea’s evidence that when they put the advertisement in the veterinary journal, they did not know that the Complainant was pregnant and that it was sometime later that she informed him she was pregnant. It was Mr O’ Shea’s evidence that he had a shoulder operation on the 1stOctober 2014 and that he could not do heavy physical work after it but did do some work in the meat factory. Mr Goggins came in to cover his other work. It was Mr O Shea’s evidence that shortly after he had the operation his wife took ill, and he had to look after their small children which impacted on his availability to attend at the practice. His wife subsequently passed away in August 2015 and he was left with three children under the age of six to care for. He did some sessions in the meat factory in the morning where he could work around the children s needs. Mr Goggins covered his other work in the practice. In March 2015 he had a meeting with the Complainant who advised that she would be returning to work in April 2015. At that meeting the Complainant asked if she could finish at 5.00pm and work 4 out of the 5 weekdays. It was Mr O’ Shea’s evidence that it ws agreed by the Director’s to facilitate her request. It was Mr O’ Shea’s evidence that as far as he was aware the Complainant did get Saturday work on her return from maternity leave. The Complainant in her work leaned towards predicable work like brucellosis testing, and TB testing. Each TB test had to be done twice in a week. This work was normally planned in advance and the schedule would be done the previous Thursday and Friday. She also did small animal clinic, but this was a walk-in clinic so work could not be planned. When the Complainant returned from maternity leave, she was not asked to cover the 5.00pm small animal clinic as she had already indicated that she wished to finish work at 5.00pm. The Complainant also carried out other work which could not be planned such as emergency call outs, injured animals , calving. The eradication of brucellosis impacted on the practice as the practice got paid per blood sample. It was Mr O’ Shea’s evidence that they did not replace the Complainant when she was on maternity leave. Under cross examination Mr O’ Shea accepted that the Complainant’s work levels had reduced when she returned as there was no brucellosis work and the Complainant had reduced her hours so was not available for the 5.00pm small animal clinic. However, it was his evidence that her scheduled work in fact increased in that she got more TB type work which meant more animals to test . Mr O’ Shea confirmed that there was no agreement as to what particular day in a given week the Complainant would have off. He accepted that if a job came up close to 5.00pm they would not contact the Complainant as they were conscious of the fact that she had requested to finish work every day at 5.00pm. Ms Whelan who is employed in the Respondent’s office and has responsibility for the accounts told the Court that she worked for the Respondent for 35 years. It was her evidence that she had taken maternity leave twice and that there has never been an issue. Ms Whelan confirmed she prepared the earning statements that were provided to the Court by the Respondent. The figures in the latest submissions supplied contained details relating to payments in respect of work done in the relevant period. Ms Whelan also confirmed that the bank statements showing monies paid to the Complainant only referred to payments in respect of work done during the relevant period. It is Ms Whelan’s evidence that she got the information from the daybook which records calls that came in and testing that was scheduled. The initials of the person who did the job were beside the job in the daybook. It was Ms Whelan’s evidence that if a call came in when she was covering the phones, she would call the Complainant. However, on occasions the Complainant was not available to take the job. It was Ms Whelan’s evidence the Complainant’s work diaries, and her file were removed by the Complainant from the office. Under cross examination Ms Whelan accepted that she did not have any backup documents in respect of the non-availability of the Complainant. Ms Donovan BL on behalf of the Respondent opened to the Court the figures Ms Whelan had referred to showing the Complainant’s earning for the cognisable period 5thApril 2015 to 4thOctober 2015 and the same period in 2014 and 2013 . It was the Respondent’s submission that in 2013 the Complainant’s earnings for the relevant period were €25,732.87, her earnings for 2014 were €23,281.14 and for 2015 €17,771.12. It is the Respondent’s submission that the reduction in earnings is accounted for by the elimination of brucellosis testing and the fact that the Complainant, following her maternity leave at her own request worked less hours per day and one less day per week The Law 6.— (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”)……. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman, and the other is a man (in this Act referred to as “the gender ground”), (b) …… (c) that one has family status, and the other does not (in this Act referred to as “the family status ground”),
InMelbury Developments v Arturs ValpetersEDA0917the Courtstated“ Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. In respect of the Complainant’s claim of discrimination on family status, it was the Complainant’s evidence to the Court that she could not identify an act of discrimination linked to her family status during the cognisable period. On that basis the Court did not need to consider this issue any further. The Complainant’s complaint on the gender grounds relates to changes to the work available to her with a consequential drop in her earnings on her return to work after her maternity leave. It was not disputed between the parties that some work the Complainant had previously done was not available to her on her return. Nor was it disputed that her earnings had dropped during the cognisable period. The Court accepts that the Complainant has established facts from which discrimination could be inferred and therefore the burden of proof shifts to the Respondent to prove that the changes to the work available to the complainant and the drop in her income were not linked to her gender. As set out above in the body of the determination the parties are not in agreement as to the Complainant’s earnings for the cognisable period or the comparable periods in previous years. The Court prefers the figures provided by the Respondent because Ms Whelan in her evidence to the Court set out for the court how she had arrived at the figures and the Court was provided with bank statements supporting the figures provided by the Respondent. The Complainant in her evidence accepted that the latest figures she provided to the Court did not provided a monetary value for some of the work she had done. The Complainant also confirmed that she could have obtained supporting documentation in respect of that element of her claim from her accountant, but she chose not to instead she directed the Court to her Revenue returns for the relevant years. The Complainant confirmed that she had not completed the Revenue returns they had in fact been completed by her Accountant who was not present at the hearing. Having considered the evidence and the documentation made available to the Court by both parties in respect of the Complainant’s earnings for the relevant periods, the Court decided that on the balance of probabilities that the figures put forward by the Respondent accurately reflected her earnings with the Respondent for the relevant periods. Those figures being as follows; for the period 5thApril 2015 to 4thOctober 2015 €17,771.12, and for the same period in 2014 €23,281.14 and for 2013 €25,732.87 . The difference between the Complainants 2014 and 2015 earnings for that period was €5,510.02 . The Respondent submitted that in previous years the Complainant had carried out brucellosis work, which was no longer available, that work was lost to everyone and was therefore in no way linked to her gender. In relation to the loss of work in the small animal’s clinic the Complainant had sought to reduce her working hours by finishing work at 5.00pm instead of 6.00pm and working 4 out of 5 weekdays, on that basis the Complainant was not available to do the 5.00pm small animal clinic. The Court having considered the submissions and the evidence before the Court determines that the complainants reduced earning following her return from maternity leave arose from a combination of the reduced hours she worked and the fact that brucellosis work was no loner available. The Court determines that these losses would arise for anyone who had previously done brucellosis work and had reduced their working hours. On that basis the Court determines that the reduction in the Complainant’s work and the consequential reduction in her earnings were not linked to her gender and therefore her complaint must fail.
The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
