Complainant

Respondent

Parties

Dawn  O'Brien

Michael Naughton T/a Eco-swift Environmental Services

Representatives

  Dawn O’Brien

 Michael Naughton

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-00046134-001

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046134-002

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046134-003

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046134-004

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046134-005

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046134-006

13/09/2021

The complainant, Ms O’Brien, and the respondent Mr Naughton both attended the hearing and gave evidence under oath/affirmation.  Both parties were given the opportunity to cross examine the evidence presented.  All relevant evidence was considered.

The complainant commenced work with the respondent as a Cleaning Operative on 1st October 2018 and remained in employment until 21st June 2021. 

In November 2020 the complainant went on Maternity Leave. The complainant was not allowed to return to work after maternity leave and was initially told that there was no work for her to return to. Then she was told that her work prior to going on maternity leave was not up to standard. This was the first time that she had been told that.  The complainant was told that she would be paid outstanding money including holidays, week in hand etc. She never received these payments. When she received the letter informing her of her dismissal it advised that she was let go due to Covid. She was told that they would put this on the letter to make it easier for her to get social welfare. The role the complainant had previously worked in was still in place in June 2021, and there were two employees doing the work that she used to do. Prior to going on maternity leave, the complainant was working alone, in a cleaning role that always had two people employed to cover it. While heavily pregnant the complainant found aspects of the job hard to do by herself, such as heavy lifting etc. She was never told that there was a problem with her work, until after she asked to come back at the end of maternity leave. It was at that stage that she was told her work was not up to standard. She was given no fair hearing, no right of reply, no chance to appeal and was denied natural justice. Since then, once again two people were employed to cover the cleaning contract that she was doing by herself, while heavily pregnant. The complainant spoke to a representative of the company in whose premises she had been cleaning and was told no complaint had been made about her work.

The complainant was not paid for holidays which accrued while on maternity leave. When she was told that she was not being allowed to return to work after having maternity leave, she was told that she would be paid outstanding holidays. She did not receive this payment and did not receive any payment for public holidays which accrued during her maternity leave.

The complainant did not get paid any notice.

 The complainant did not receive any terms of employment.

The respondent was not familiar with the details regarding holidays etc as the records were previously kept by his then partner.  During the complainant’s period of maternity leave the respondent and his partner were going through a separation and the respondent did not have access to the information including details of holidays and contract of employment.  During this same period he lost five of the factories with whom he had a contract for cleaning, leaving only one.  The person employed to cover for the complainant while on maternity leave was subsequently retained by that factory meaning there was not position for the complainant to return to.  At no stage were 2 people employed to carry out the work of the complainant.  The discussions regarding performance had been with his partner and the respondent could not provide any details in that regard.

CA-00046134-001  Employment Equality Act

Section 6 (1) of the Employment Equality Act  provides that;

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 person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds in subsection (2) in this Act referred to as “the discriminatory grounds”

Section 6 (2) provides that:

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”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

Section 6 (2 A) provides;

Without prejudice to the generality of  subsections (1)   and  (2)  , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated

Section 26 of the Maternity Protection Act 1994 provides:

26.—(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—

 (a) with the employer with whom she was working immediately before the start of that period or, where during the employee's absence from work there was a change of ownership of the undertaking in which she was employed immediately before her absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,

 (b) in the job which the employee held immediately before the start of that period, and

 (c) under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, and (in either case) under terms or conditions not less favourable than those that would have beenapplicable to theemployee if she had not been so absent from work.

Section 27 provides:

27.—(1) Where an employee is entitled to return to work in accordance with section 26  but it is not reasonably practicable for the employer or the successor to permit the employee to return to work in accordance with that section, the employee shall, subject to this Part, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work under a new contract of employment.

 (2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—

 (a) the work required to be done under the contract is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances; and

 (b) the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to the employee than those of her contract of employment immediately before the start of the period of absence from work while on protective leave.

It is clear that the respondent has breached the Maternity Protection Act Section 26 and 27, by failing to allow the complainant to return to the same terms and conditions of employment following maternity leave.  The complainant was therefore discriminatorily dismissed on the grounds of gender. In light of all the circumstance of this case I determine an award of compensation which is fair and equitable should be measured at €7,000 being the equivalent of 26 weeks wages.

CA-00046134-002

This complaint more properly relates to the Organisation of Working Time Act as it concerns non-payment for untaken holidays.  The complainant quantified the untaken holidays as being 7 days. The respondent was unable to provide any information in relation to this complaint and unable to demonstrate that the leave had been granted.  The complaint is therefore well-founded

CA-00046134-003

This complaint relates to the non-payment of notice and therefore is more properly considered under the Minimum Notice and Terms of Employment Act, 1973.  In accordance with Section 4 (2) (b) of that Act the complainant was entitled to 2 weeks’ pay in lieu of notice.  The Act was therefore contravened by the respondent.

CA-00046134-004

The complainant has alleged that she was not paid for 1 week due to her as a ‘week in hand’.   The respondent was unable to demonstrate that this money had been paid and therefore this complaint is well-founded.

CA-00046134-005

The complainant alleges that she was not paid for public holidays which occurred during her maternity leave. The respondent was unable to provide any information in relation to this complaint and unable to demonstrate that the leave had been granted.  The complaint is therefore well-founded.  I quantify the number of public holidays which fell within the period of maternity leave as being 4.

 CA-00046134-006Terms of Employment (Information) Act, 1994

The complainant alleges that, while she signed a contract of employment, no copy of this was ever provided to her.  The respondent was unable to demonstrate that the terms of her employment had been given to her.  This complaint is therefore well-founded.

CA-00046134-001  The complainant was discriminatorily dismissed and I order the respondent to pay her the sum of €7,000.

CA-00046134-002 The complaint is well-founded, and I order the respondent to pay the complainant the sum of €370.00

CA-00046134-003 The Act was contravened by the respondent, and I order the respondent to pay complainant the sum of €525.00

CA-00046134-004 The complaint is well-founded, and I order the respondent to pay the complainant the sum of €262.50.

CA-00046134-005 The complaint is well-founded, and I order the respondent to pay the complainant the sum of €210.00

CA-00046134-006 This complaint is well-founded, and I order the respondent to pay her the sum of €200.00

Discriminatory dismissal during Maternity Leave.  Non-payment for holidays/public holidays. Payment of wages. Minimum Notice.  Terms of employment