Complainant

Respondent

Anonymised Parties

A Former Employee

A Child Care and Early Education Facility

Representatives

Sharon Oakes Solicitors

Patrick Crowley JJ Macken Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030688-001

05/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039590-001

04/09/2020

The Complainant commenced employment as a Child Care Assistant with the Respondent which runs a child care and early education facility - on 21/11/2018. Her weekly pay was €334.00. In July 2019 the Respondent had a staff of eight employees and there were forty five children attending ranging in ages from ten months to four years.

An allegation of hitting a child on the 2nd July 2019 was made against the Complainant. Written statements were obtained from two employees of the Respondent - namely A and B - on the 3rd and 4th July 2019 respectively.

Employee A’s statement dated 3rd July 2019 stated as follows:

On the second of July at 4.45 I was working in the room with [Complainant]. The children were waiting for there melon and crackers. [Complainant] was pouring drinks for the children. I was standing in the centre of the room as [Complainant] was pouring the drinks, when pouring [Child’s] drink, [Child] moved her cup and the water went over the table. Complainant shouted at [Child] and hit [Child] with her right hand on her right temple. [Child] started crying and I said to [Complainant] there is no need to hit her on the head. [Complainant] just grunted back at me saying ‘Hmm’. I left the room to find [Manager] to report the incident. I reported the incident to [Manager] straight away”.

Employee B’s statement dated 4th July 2019 stated as follows:

“On the 2/7/19 I was working in the baby room & left to go to the kitchen at 4.55pm I passed through [Complainant’s] room on the way to the kitchen. I heard [Employee A] say to [Complainant] ‘there is no need to hit her on the head’. [Employee A] seemed annoyed & I continued out to the kitchen”.

By letter of the 5th July 2019 the Complainant was notified that a disciplinary hearing would take place on the 10th July and following this, the Respondent terminated the Complainant’s employment effective from 12/7/2019. Thereafter, the Complainant unsuccessfully appealed the dismissal.

The Complainant strongly disputes and rejects the allegation, takes issue with the disciplinary process and maintains she was dismissed because of her pregnancy.

The WRC received the Complainant’s complaint pursuant to the Unfair Dismissals Act [1977-2017] on the 5th September, 2019 (CA-00030688-001). The Complainant’s Solicitor wrote to the WRC on the 7th August 2020 advising that the Complainant had  “ticked the Unfair Dismissal box in error and should have ticked the Discrimination/Equality and Equal Status option…”. In a further letter of the 17th August 2020 the Complainant’s Solicitor stated that if the complaint under the ground of Discrimination/Equality/Equal Status was deemed out of time, that this should not prejudice the Complainant’s complaint under the Unfair Dismissals Act [1977-2017]. The Complainant completed a second WRC complaint form in which she stated that her complaint fell under the “Discrimination/Equality/Equal Status” ground  and that the most recent date of discrimination was the 3rd July, 2019. The complaint under the Discrimination/Equality/Equal Status ground was listed by the WRC as CA-00039590-001.

At the commencement of the adjudication hearing I drew the Complainant’s attention to Section 101 of the Employment Equality Act [1998-2018]. Section 101 deals with alternative avenues of redress. The phrases “in respect of the dismissal” or “in respect of a dismissal” are used in sub-sections 2, 4 and 4A to indicate that a complainant may not make two complaints about the same dismissal under different legislation. It is clear in Section 4A that a claim for discriminatory dismissal under the Employment Equality Act and a claim for unfair dismissal under the Unfair Dismissal Act, arising from the same facts, cannot be maintained. In such circumstances the Complainant must either withdraw the complaint under the Unfair Dismissals Act or the complaint brought under the Employment Equality Act will be deemed to have been withdrawn.

The Complainant clarified that she wished to pursue her claim for unfair dismissal under the Unfair Dismissals Act [1977-2017] and confirmed that her complaint under the Employment Equality Act [1998-2018] was being “withdrawn in its entirety”.

The Complainant stated that she was the subject of a false allegation of hitting a child in her care on the 2nd July 2019 which she categorically denied. It is the Complainant’s position that the real reason for her dismissal was because of her pregnancy. In addition, the Complainant stated that the disciplinary and appeals processes were unfair and that the allegation was not properly investigated.  

In relation to the allegation of the 2nd July 2019, the Complainant outlined that during a meal break she was pouring out water for the child in question and that the child spilled the water on the table and was playing with the water. The Complainant stated that she said to the child “don’t do this” and that she got blue roll, dried the table and got more water for the child. The Complainant stated that when the child did the same again she told the child that she was not going to give her any more water and the Complainant took the child’s cup and put it on top of a shelf. The Complainant stated that as a result the child got upset and started crying. The Complainant stated that she then gave the cup back to the child. At the adjudication hearing the Complainant also mentioned calling the child a “cheeky monkey” but she stated this was said in a “light hearted” manner.  

The Complainant maintained that at no time in the course of this interaction with the child, did she hit the child as alleged and that she strongly denied any such an allegation which was contrary to her character and at odds with her previous experience. The Complainant stated that her good name and reputation was of vital importance to her, that she was a person of good character, that her past references demonstrated that she was a professional child care worker  and that she is  “kind, gentle and respectful” which the Complainant submitted was evidenced by the gifts and cards she had received from children and parents over the years. The Complainant stated that she had completed Montessori course level 6 in 2017 and that she previously worked for a creche and in a Montessori.

In relation to what occurred on the 2nd and 3rd July 2019 the Complainant outlined:

·       That on the 2nd July 2019 after Employee A had made the allegation to the Respondent’s Manager, she was left alone with the child in question and other children for about half an hour;

·       That at approximately 5.30pm on the 2nd July, when her shift ended the Respondent’s Manager came into the room and informed the Complainant of the allegation which the Complainant  immediately denied;

·       That on the following morning, 3rd July 2019,  the Complainant went to work as usual and was again left on her own with her own group of children from 9am – 10.30am – which did not include the child who was the subject of the allegation;

·       That at approximately 11.20am on the morning of the 3rd July, the Respondent’s Manager called the Complainant to the office “to give her statement”. The owner of the Respondent was also there. The Complainant stated that she was very shocked and considered that the owner had already made up her mind. The Complainant stated that initially the Respondent’s owner said to her “you know why you are here” and that she answered yes in reply.  The Complainant stated that the owner then asked “why did you hit X (the child)”. The Complainant stated that when she reacted to the seriousness of the complaint the Respondent’s owner told her “not to be so dramatic”. The Complainant denied the allegation at this meeting. The Complainant stated she asked the Respondent whether they could talk to the child in question to establish the truth of the allegation and they refused to do so. The Complainant stated that she was advised at this meeting she was being suspended.

The Complainant stated that she strongly took issue with the statements of Employees A and B which she stated were not credible or substantiated. The Complainant stated that the statements were not a true reflection of what occurred and that it was not credible that A and B could recall the exact time of the alleged incident. The Complainant stated that B’s statement was drafted two days after the alleged incident and that it was replete with hearsay. Further, the Complainant maintained that she was accused of hitting the child with her right hand but that she is left handed and that “A left handed person does not naturally strike using their right hand”. The Complainant also referred to the absence of CCTV footage – contrary to what was stated on the Respondent’s website – which if available would have vindicated her version of what occurred.

The Complainant stated she was not provided with a written account of her verbal statements of the 2nd and 3rd July 2019 made to the Respondent’s Manager and owner respectively – either prior to the disciplinary hearing or at any time. The Complainant also stated that she was not invited to provide a written statement for the purpose of the disciplinary hearing. She stated that English was not her first language and that the Respondent did not provide any assistance to her in understanding the nature of the disciplinary process or enable her to prepare in any way.

The Complainant stated that the Child’s mother was not informed of the alleged incident until the 8th July 2019 when she was informed that the Child was “ ‘tapped’, not hit, as alleged”. The Complainant submitted that a ‘tap’ (which she denied) “could not conceivable amount to gross misconduct”.

In relation to the disciplinary hearing, the Complainant stated that Employees A and B read from their statements but that she was not afforded the same opportunity. The Complainant stated that she was not informed that she had the right to ask questions of Employees A and B and that the disciplinary panel - ie the Respondent’s owner and Manager - did not ask any questions of A and B either. The Complainant stated that A came across very nervous and uncomfortable “stemming from the false statements….being made”. The Complainant maintained that the disciplinary hearing  “wholly failed to even attempt to discover the legitimacy of…[ A’s] allegations”.

Following the disciplinary hearing the Complainant stated that she was dismissed by letter of the 12th July 2019 which stated that “Management has determined your actions on the 2nd July 2019 were abusive behaviour and physical and verbal assault of the child….These actions amounted to gross misconduct as set out in the Staff Handbook Discipline Policy….”. The Complainant stated that she submitted letters of appeal dated the 18th July and 1st August 2019 respectively. She stated that her appeal was unsuccessful as the Appeal’s process blindly followed the findings of the disciplinary hearing “taking the view that [Employee A’s] statement was true and conversely by implication, that [the Complainant’s] evidence was untrue”. The Complainant stated that the appeal process failed to properly investigate the truth of the allegation.

It is the Complainant’s position that she was not afforded fair procedures in the course of the disciplinary process, that the Respondent did not conduct a thorough investigation, that her evidence was not given the weight it deserved and that the evidence of Employee B was hearsay. The Complainant reiterated that there never had been a complaint of this nature against her, that there were no previous workplace issues and that the decision to dismiss was unwarranted, pre-determined and disproportionate. The Complainant furnished a reference from a previous employer testifying to her character and professionalism.

Pregnancy

The Complainant maintained that the real reason for her dismissal was because of her pregnancy. In this regard, the Complainant stated she was treated differently by the Respondent after she informed the Respondent’s Manager at the beginning of May 2019 of her pregnancy. The Complainant stated that her relationship with the Respondent’s Manager was normal – there had been some early issues but these did not persist. The Complainant stated that the differential treatment indicated that the Respondent had already determined – prior to the alleged incident of the 2nd July 2019 – “that it did not want [the Complainant] to continue in her employment…” The Complainant outlined the following as evidence of differential treatment by the Respondent:

·       All of the other staff had received second new uniforms except for the Complainant thereby demonstrating that she was being excluded. The Complainant explained that all the staff had two uniforms – that initially she was provided with the uniform of the Respondent’s owner’s but that unlike the other staff, she did not receive a second new uniform;

·       That other staff were the subject of staff appraisals (called “catch ups”)  but the Complainant did not have an appraisal in June 2019 and her last appraisal was May 2019. The Complainant stated that she did not have an appraisal on the 1st July 2019. The Complainant stated that she felt left out as a result as the appraisals were conducted by way of meeting between employee and superior;

·       In mid June 2019, the Complainant was asked not to take time off she needed for a hospital appointment for a pregnancy scan. The Complainant had called the hospital to re-arrange the appointment and when this was not possible, the Complainant stated the Respondent’s Manager “was very unhappy with…” her. The Complainant stated that she felt the Respondent’s Manager was “indifferent” to her on this occasion even though she was trying to attend her pregnancy scan.

The Complainant cited a range of Irish and EU law and jurisprudence prohibiting dismissal during pregnancy, including Article 10 of EU Council Directive 92/85/EEC (the Pregnancy Directive) prohibiting the dismissal or workers during pregnancy “save in exceptional cases…”. The Complainant stated that the reason for dismissal set out in the Respondent’s letter of the 12th July 2019 “did not amount to exceptional circumstances for the purposes of dismissing a pregnant employee, contrary to Article 10 of the Pregnancy Directive….”.

The Complainant contends that the allegations were contrived because the Respondent was not happy about her pregnancy. It is her position that when she was pregnant, she was wrongfully forced “to engage in a stressful and unfair disciplinary process fraught with shortcomings and deficiencies…” and was not afforded the legal protections a pregnant employee is entitled to. She stated that she was not physically or mentally in a position to deal with a disciplinary process.

The Complainant stated that she was satisfied that because of her pregnancy there was nothing she could have said which would have avoided her dismissal. She stated she was shocked when she received the letter of dismissal and that at the time she was eighteen weeks pregnant. She stated that the dismissal had a significant impact on her emotionally and financially and that that she was deeply distressed by the loss of her good name and reputation. The Complainant outlined that since the dismissal on 12/7/2019 she has not been able to secure alternative employment although she has made several applications. Currently she is undertaking a re-training course.

Cross-Examination

Mr Hewson BL for the Respondent cross examined the Complainant in relation to her evidence. Under cross examination the Complainant maintained her denial of the allegation. Whilst the Complainant accepted the “Support and Supervision” notes, she disputed the “catch up” record of 1/7/2019 and stated that the note didn’t prove anything.

The Complainant accepted as plausible the evidence of another Employee C in relation to C forgetting to bring in a maternity uniform C herself had used. However, the Complainant  maintained that what mattered to her was that by July 2019 she wasn’t provided with a second uniform and that she should not have been obliged to follow up on the matter.

In relation to the Complainant’s hospital appointment, the Complainant maintained that the Manager was more interested in managing staff on holidays and that she felt the Manager’s tone of voice indicated indifference.

It was put to the Complainant that she had not made any complainant about her treatment during pregnancy or at any time when she was employed – the Complainant accepted this.

In response to questions about the disciplinary process, the Complainant stated that she had read the Respondent’s Disciplinary Policy but that she did not understand the process as English wasn’t her first language. However, the Complainant accepted that that she had not raised any complaint about the disciplinary process during the disciplinary hearing. The Complainant also accepted that the three and half page written record of the disciplinary hearing titled “Note of Disciplinary Hearing Wednesday 10th July 2019 at 10.30am” was accurate and correct. The Complainant further stated that the person conducting the appeal had dealt with each of her grounds of appeal but she did not agree with the outcome.

The Respondent denied that it had unfairly dismissed the Complainant and that it had dismissed the Complainant for reason of her pregnancy. The Respondent outlined the sequence of events which led to the Complainant’s dismissal and presented the evidence of its owner, the Respondent’s Manager and employees  A, B and C.

The Respondent’s Manager outlined the steps she took when contacted by Employee A, that she relayed the information to the Complainant and the Respondent’s owner. The Respondent’s Manager stated that the Complainant was “shocked” when she heard of the allegation and denied it. The Respondent’s owner stated that she was shocked when on the 2nd July 2019, the Manager told her of the allegation, that the child in question was two and half years old and that something like this had never happened before. The Respondent’s owner outlined the duty of the Respondent with regard to the care of children which was the Respondent’s priority and stated that hitting a child was a “no no”.  The Respondent’s owner disputed the Complainant’s evidence in relation to being left alone with children after the allegation and she stated that the Manager was with the Complainant on the morning of the 3rd July 2019.

The Respondent’s owner outlined:

o   Her meeting Employees A and B on the morning of the 3rd July 2019 wherein she requested each to provide a statement as to what occurred;

o   Her meeting with the Respondent’s Manager and the Complainant also on the morning of the 3rd July 2019 to establish what occurred. The owner stated that she asked the Complainant why the child was crying. The Complainant denied hitting the child and said she was cheeky. The Respondent’s owner stated that she had no option but to suspend the Complainant that morning pending an investigation and that in reply the Complainant stated she would have to get legal advice. The Respondent’s owner stated that she advised the Complainant “that was fine”;

o   That by letter of the 5th July 2019 the Respondent notified the Complainant that a disciplinary hearing would take place on the 10th July and the Complainant was furnished with:

§  Employee A’s statement dated 3rd July 2019 and Employee B’s statement dated 4th July 2019;

§  Her contract of employment and Early Years Practitioner Job Description;

§  Staff Handbook, Disciplinary Policy;

§  Respondent’s Policy and Procedure 2017 including extracts related to the Code of Behaviour for Staff, Code of Ethics and Managing Behaviour;

§  Extract of Child Care Act 1991.

The Respondent’s owner outlined the proceedings at the disciplinary meeting of the 10th July 2019 which was conducted by the owner and the Respondent’s Manager. In this regard the Respondent stated that the Complainant was accompanied, that Employees A and B read out their statements and that the Complainant was invited to respond to the statements and ask questions. The Respondent stated that the Complainant declined to ask questions and stated that she was going to “stick to” the statement that she had already made. The Respondent stated that it clarified with the Complainant that this statement was the conversation the Complainant had had with the Respondent on the 3rd July when she was suspended which the Complainant agreed it was. The Respondent’s owner stated that she advised the Complainant that this was not a statement and that the Complainant was asked to give her version of events which she did and reiterated  that she had not hit the child in question or shouted at her. The Respondent’s owner stated that she invited the person accompanying the Complainant to ask questions and that he answered that this was just an allegation. The Respondent’s owner stated that she advised the Complainant and the person accompanying her that it was just an allegation, that the purpose of the proceedings was to hear everyone’s account and that no decision had been made. The Respondent’s owner stated that towards the end of the disciplinary meeting there was a knock on the door just as the person accompanying the Complainant was about to say something, that the Respondent asked him to continue but he declined stating that he would “leave it”. The Respondent’s owner stated that it asked the Complainant if she had anything to ask or add and that in response, the Complainant requested a copy of her statement. The Respondent stated the person accompanying the Complainant agreed the Complainant’s statement would be in the minutes of the meeting.

Employee A stated that at approximately 4.45pm on the 2nd July 2019 the Complainant was pouring water from a jug which spilt, that the Complainant was standing behind the child in question and that when the child moved the water, the Complainant “shouted at her and hit her”. Employee A stated that the Complainant had no need to hit the child.  Employee B stated that she was walking through the room at approximately 4.55pm on the 2nd July 2019 when she overheard Employee A say to the Complainant “There is no need to hit her on the head”. Employee A stated that she had no reason to make up the allegation and that there was no “bad blood” between her and the Complainant. Employees A and B stated that the Complainant did not ask them any questions at the disciplinary hearing on the 10th July 2019.

The Respondent’s owner stated that after the disciplinary hearing she and the Manager decided to terminate the Complainant’s employment by letter of the 12th July 2019 on the grounds that:

“Management has determined your actions of the 2nd July 2019 were abusive behaviour and physical and verbal assault of the child….These actions amounted to gross misconduct as set out in the Staff Handbook Discipline Policy….”

The Respondent stated that in response to the Complainant’s appeal letters dated the 18th July and 1st August 2019, it hired an Independent HR Consultant to conduct the appeal which was heard on the 2nd August 2019. The Respondent stated that the Complainant was accompanied at the appeal hearing by the same person who had accompanied her at the disciplinary hearing. The  Respondent received the outcome of the appeal by letter of the 6th August 2019 which upheld the dismissal. In this regard, the Respondent pointed out that the appeal dealt with each of the Complainant’s grounds of appeal and overall determined that the Complainant was notified in advance of the disciplinary hearing, that she was given the opportunity to be heard in her defence, that she was accompanied at the disciplinary hearing, that due consideration was given to her responses prior to the decision to dismiss and that she was afforded the right of appeal.

The Respondent referred to various documents which it said it and the Complainant was bound by in terms of the protection of children – including the Child Care Act 1991, the Complainant’s contract of employment and the Respondent’s policies and procedures including its Disciplinary Policy, Code of Behaviour for Staff, Code of Ethics and principles on Managing Behaviour.

Pregnancy

The Respondent rejected the Complainant’s contention that her dismissal was because of her pregnancy. In this regard, the Respondent’s owner stated that it had no issues with the Complainant until the incident of the 2nd July 2019. The Respondent stated that it had difficulties recruiting and retaining staff and that there was a high turn over of staff in the sector. Both the Respondent’s owner and Manager stated that that given the workforce was predominantly women, it was not unusual for staff to become pregnant and that they both had congratulated the Complainant on her pregnancy.

In relation to the Complainant’s assertion that she was treated differently because of her pregnancy, the Respondent stated:

·       That a number of performance reviews were conducted with the Complainant in the course of her employment which were referred to in the workplace as “catch-ups” including on the 1st July 2019 the day prior to the incident. The Respondent’s Manager stated that she had done regular “catch-ups” with the Complainant and had discussions with the Complainant in relation to her performance which were recorded under the title “Support and supervision”. In this regard, the Respondent’s Manager referred to her  written notes of “catch ups” dated 26/2/2019, 9/4/2019, 22/5/2019, 27/5/2019 and 1/7/2019 and a report headed “Support and supervision” dated 4/2/2019. The Respondent’s Manager stated that the allegation that the Complainant had “no catch ups” prior to 1/7/2019 was not borne out by the facts. The Respondent’s owner stated that the appraisals/ “catch ups” were done when the Manager got a chance and that she was happy with the level of frequency – she stated they were intended as a guidance;

·       The Respondent’s owner stated that uniforms are ordered when needed and that the Complainant had no uniform initially and for about three months as she was a “floating” member of staff. The Respondent stated that it provided uniforms for all staff and these are retained when employees leave. The Respondent’s Manager outlined that when the Complainant informed her of her pregnancy, she/the Manager texted another staff member C who had recently given birth seeking her maternity uniform for the Complainant. The Respondent’s Manager provided copy of the text she sent to Employee C on the 27th May 2019 which stated:

“Hey [C] will you keep hold of that maternity uniform for me we will be needing it soon for [Complainant]”.

Employee C’s evidence was that about a month after the text of the 27th May 2019,  she called to the Respondent’s premises but that she forgot to bring the uniform with her and that she told the Complainant she would bring it out again. The Respondent’s owner stated the Complainant had not made any complaint about the matter of uniform during her employment with the Respondent;

·       That the reason the Respondent asked the Complainant to re-schedule an appointment connected with her pregnancy was due to the fact that at the particular time, other staff were on sick leave. The Respondent stated that when this could not be done, it facilitated the Complainant so that she could attend her appointment as scheduled. The Respondent’s Manager stated the Respondent always tries to accommodate staff regarding any hospital appointments. The Respondent’s owner outlined that there were two people out sick on the day in question, that there was some forty five children who had to be cared for and that she sought to get a substitute. The Respondent maintained that its dealing with this matter was not unreasonable given its limited resources.

It is the position of the Respondent that the Complainant’s dismissal was entirely unrelated to her pregnancy. The Respondent maintains that a serious allegation had been made against the Complainant which it was obliged to investigate. The Respondent stated that it adhered to fair procedures and its own internal disciplinary procedure.  The Respondent maintained there was a reasonable basis for dismissing the Complainant, that Employee B’s evidence was not hearsay and that the Respondent was entitled to take it into consideration. The Complainant was dismissed for gross misconduct and not by reason of her pregnancy.

Cross Examination

Mr Murray BL for the Complainant cross examined the Respondent’s witnesses in relation to their evidence. Many of the points were reiterated. In the course of the cross examination the Respondent’s owner stated that the CCTV was no longer working and that the Complainant was aware of this. The Respondent’s owner disputed that she accused the Complainant of being dramatic. The owner also stated she was satisfied that the Complainant had “excellent” spoken and written English as otherwise she would not have been employed. The Respondent’s Manager disputed that the Complainant  was left on her own with pupils on the morning of 3/7/19.  

In relation to contact with  the child’s mother and the description of the incident to the mother as a “tap” and not a “hit”, the Respondent’s owner stated that she told the mother on 8/7/2019 and that she was distraught when telling her and wished to put it as “mildly as she could”.  The Respondent’s owner clarified that  no report was made to the Gardaí but that she contacted TUSLA and was advised there was no need to follow up as the Complainant was no longer an employee.

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.

Section 6 (2) provides that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed to be unfair if it results wholly or mainly from one of….

(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

(g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes…..”

In this case, the Complainant has argued she was dismissed because of her pregnancy.  Therefore, I must first consider whether the reason for the Complainant’s dismissal is comprehended by Sections 6 (2)(f) and/or 6 (2)(g) of the Act. If so, then by operation of law the dismissal was unfair.

The fact of dismissal was not in dispute nor was the fact that the Respondent was aware of the Complainant’s pregnancy. The Complainant cited Irish and EU law and jurisprudence prohibiting dismissal during pregnancy, including Article 10 of EU Council Directive 92/85/EEC (the Pregnancy Directive) which specifies:

“1. Member states shall take the necessary measures to prohibit the dismissal of workers….during the period from the beginning of their pregnancy to the end of the maternity leave….save in exceptional circumstances not connected with their condition which are permitted under national legislation….;

2. if a worker….is dismissed during the period referred to in point 1, the employer must cite duly substantial grounds for her dismissal in writing….”.

As it has been determined that the duration of pregnancy is a protected period, it follows that a particular onus falls on an employer with respect to any contemplated dismissal during this period in terms of citing “substantial grounds…in writing”. This is the level at which the bar is set. It is not sufficient for an employer to simply aver that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification for the dismissal is required. In the case of Assico Assembly Limited V Corcoran (EED 033/2003) which was cited by the Complainant, the Labour Court held:

Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law…..should be set out in writing”

In McGuirk V Irish Garden Publisher Limited (DEC-E-2007-031) the Equality Officer stated:

“It is well established ECJ jurisprudence that women who are pregnant are to be afforded special protection in employment and cannot be dismissed from the beginning of pregnancy until the end of their maternity leave (the protected period) save in exceptional circumstances unrelated to their pregnancy. It is true that the Complainant’s dismissal took place during the protected period and it therefore falls to the Respondent to show that the termination of her employment was unconnected whatsoever with her pregnancy”.

In the present case, I must decide on the balance of probabilities, which version of events I find to be the more credible. I have considered all the evidence, documentation and written submissions and I find that the Complainant’s dismissal was unrelated to her pregnancy. In coming to this conclusion, I considered the following factors to be particularly persuasive:

·       There is no dispute there was an incident on the 2nd July 2019, notwithstanding that the parties dispute the nature of this incident. I am satisfied this incident precipitated the instigation of the disciplinary procedure and ultimately the Complainant’s dismissal;

·       The Complainant had informed the Respondent in May 2019 of her pregnancy which was a number of weeks prior to the incident of the 2nd July. The Complainant raised no issue about differential treatment at any time between May and the 2nd July or at any time during her employment;

·       In relation to the provision of a second uniform to the Complainant, I find the Respondent Manager’s evidence credible and persuasive about the text she sent Employee C on the 27th May 2019  – together with copy of that text;

·       I found the Respondent’s evidence vis-à-vis the conducting of staff appraisals with the Complainant credible and the availability of records for these appraisals was persuasive;

·       I found the Respondent’s evidence in relation to Complainant’s request for time off to attend a medical appointment in June 2019 was not unreasonable – that being said I accept that it was stressful for the Complainant to be asked to change her appointment to accommodate staff shortages for which she was not responsible. Notwithstanding that the Complainant was allowed to take the time to attend this medical appointment, in my view this matter should have been handled more appropriately by the Respondent. That being said, I do not consider this exchange in relation to the Complainant’s attendance at a medical appointment in June 2019 indicated a pre-disposition on the part of the Respondent to dismiss the Complainant or that it constituted a reason for dismissal within the parameters of Sections 6 (2)(f) and/or 6 (2)(g) of the Unfair Dismissals Act [1977-2017];

·       As regards the reason for instigating a disciplinary process, I found the Respondent’s evidence persuasive in respect of its duty of care to the child who was the subject of the allegation and its own policies and procedures, the Complainant’s contract of employment and  the Child Care Act 1991.  

Having found that the Complainant’s dismissal was unrelated to her pregnancy, I must now consider whether it was fair in accordance with the other terms of the Unfair Dismissals Act [1977-2017]. The Complainant had a legal and an implied contractual right to fair procedures. If it was the case that the dismissal was performance related then I must consider whether or not the Respondent engaged in a fair disciplinary process. In this regard:

Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out specific circumstances wherein the dismissal of an employee “shall be deemed…..not to be an unfair dismissal” and these include at Section 6 (4)(b) “the conduct of the employee,…”.

Section 6(6) of the Act provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

a)      “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b)      to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”

The issue of reasonableness was considered by Noonan J. in the High Court case of Bank of Ireland V O’Reilly [2015] IEHC 241 where it is stated that:

“…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In O'Riordan v Great Southern Hotels UD1469/03 the EAT held that:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

In Bunyan V United Dominions Trust [1982 ILRM 404], the EAT stated:

“[The] fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded”

The combined effect of the aforementioned establishes that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the Complainant but rather to consider whether or not the Respondent's decision to dismiss on the grounds stated, was reasonable in the circumstances. Therefore I must consider whether a reasonable employer, in the Respondent's position and circumstances, would have dismissed the Complainant. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process and that the decision to dismiss was reasonable.

Statutory Instrument (SI) 146/2000 sets out the following general guidelines to comply with the principles of natural justice and fair procedures:

-          That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

-          That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

-          That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal – ie  the principle of proportionality. 

The Court of Appeal in Iarnród Éireann/Irish Rail V McKelvey [2018] IECA 346, endorsed the principles set out in SI 146/2000 and stated:

“That code of practice is stated to promote best practice and outlines the principles of fair procedures for employers and employees generally …... It is well understood that the code, promulgated so many years ago, was developed so that disciplinary issues could be handled in accordance with the principles of natural justice and fair procedures ….”

The Court of Appeal’s judgement was approved by the Supreme Court where Charleton J. commented:

“…. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal…Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making defence to the allegations made against him…”

The test of reasonableness was set out in Noritake (IRl) Ltd v Kenna (UD 88/1983), namely:

1.       Did the company believe that the employee mis-conducted himself as alleged: If so,

2.       Did the company have reasonable grounds to sustain that belief? If so,

3.       Was the penalty of dismissal proportionate to the alleged misconduct?

In the present case, the Respondent has asserted that it acted reasonably in dismissing the Complainant on the ground of gross misconduct. In the alternative, the Complainant has submitted that the Respondent conducted an unfair investigation, that the case was pre-judged, that the complaint was not substantiated,  that she was not afforded fair procedures and that the penalty of dismissal was unwarranted and disproportionate. 

In coming to my decision, I have considered all of the oral evidence, submissions and correspondence and I find as follows:

-          That the Complainant’s contract of employment provided for a Disciplinary Procedure and a requirement to comply with the Respondent’s “childcare and employment policies”;

-          That the Respondent’s Discipline Policy provided that “The level of warning that may be issued….may not necessarily commence at Stage 1. The level of warning will be determined by the level of misconduct or gross misconduct…..” and that  “The company therefore has the right to issue any sanction up to an including dismissal, dependent on the gravity of the matter….”. The policy  also included examples of gross misconduct;

-          That the Discipline Policy set out a paragraph dealing with employees’ rights under the policy including the right to be informed of the complaint, to be accompanied to disciplinary meetings and given the opportunity to present their case “before a decision regarding the discipline to be imposed is reached”;  

-          That the Complainant was informed of the allegations of Employees A and B on the 2nd and 3rd July 2019;

-          That by letter of the 5th July 2019 the Complainant was notified  of the disciplinary hearing of the 10th July, provided with the written complaints, appraised of the procedure being followed, advised who would be attending the disciplinary hearing, advised that she was entitled to be accompanied and would have an opportunity “to respond and state [her] position”;

-          That an internal appeal was provided;

-          That the matter of the Respondent’s dealings with the child’s mother, its subsequent contact with TUSLA and its decision not to contact the Gardaí  are not germane to my deliberations.

In relation to the disciplinary hearing, I have carefully considered the three and half page document titled “Note of Disciplinary Hearing Wednesday 10th July 2019 at 10.30am”. Whilst it is clear from the record that the Complainant’s representative was “not permitted to directly question or cross examine either [Employees A or B] which would have been preferable, as against that the Complainant was afforded the opportunity to respond and “ask them questions”. In the course of the disciplinary hearing the Complainant repeatedly denied the allegation and the note of the meeting includes the Complainant’s version of what occurred. The note also records that the owner of the Respondent “said if there are no more questions the Hearing would be brought to a close. [The owner] asked [the Complainant] whether she was sure she had no more questions” and later “if she had anything else to add”. The note of the hearing also records that the Respondent’s owner asked the Complainant’s representative if he had any questions to which he answered “this is just an allegation”.  The Complainant and her representative were also asked whether they had any questions about the procedure and both answered that they had none. In the course of the adjudication hearing the Complainant confirmed that the notes of the disciplinary hearing were correct and accurate. 

In light of the foregoing and having carefully considered the Complainant’s concerns about the disciplinary process, I find that her contentions in this regard are not supported by the evidence. The letter of the 5th July 2019 stated that “an incident of this nature [was] a matter of gross misconduct” which I consider put the Complainant on notice of the gravity of the situation but did not amount to a finding - at that stage - on the part of the Respondent. I am satisfied that it was a matter for the Complainant to prepare for the disciplinary hearing including preparing a written statement should she so wish – particularly after she had received Employee A and B’s written statements. The Complainant was accompanied at the disciplinary hearing by a person of her choice. Neither the Complainant nor her representative objected to the process at any stage or in any respect including in relation to time to prepare or lack of understanding of the process.  

In all the circumstances, I find the Complainant was dismissed following a disciplinary process which complied with fair procedures and with the Respondent’s internal disciplinary procedure.  A serious complaint was made against the Complainant by Employee A which was to some extent corroborated by Employee B. Notwithstanding the fact that the Complainant maintains her absolute and categorical denial of the allegation, I am satisfied that the Respondent was entitled to prefer the evidence of Employees A and B on the balance of probabilities and that the absence of CCTV did not dis-entitle the Respondent from so doing.  Given the nature of the Respondent’s business and the policy and legal framework within which it works, I am also satisfied that the sanction of dismissal fell within the band of reasonable responses available to the Respondent. In light of the foregoing, I find the Respondent has discharged the burden of proof in demonstrating that it did not unfairly dismiss the Complainant.

CA-00039590-001

Section 79 of the Employment Equality Act [1998 – 2018]requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The Complainant elected to withdraw this complaint in its entirety at the adjudication hearing.  

CA-00030688-001

Section 8 of the Unfair Dismissals Act [1977-2017] requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons outlined, I decide this complaint is not well founded.

Dismissal;  Pregnancy