EDA2219

1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00023019, CA-00029648-001

BACKGROUND:

2.The Employer appealed the decision of the Adjudication Officer to the Labour Court underSection 77 (12), of the Employment Equality Acts, 1998 to 2015.Labour Court hearings took place in a virtual setting on 8 and 9 September 2021 and 28 July 2022. The following is the Court's Determination:




DETERMINATION:

Background

This is an appeal under the Employment Equality Act, 1998-2015, ‘the Act’

Ms. Padayachee, ‘the Complainant’, was employed by David Aranda Petit Delice Ltd., ‘the Respondent’ from 1 March 2019 to 2 April 2019. In the course of March 2019, the Complainant discovered that she was pregnant.

The Complainant is a South African national and needed the signature of her employer to complete the work permit process. The Complainant contends that this was withheld because she was pregnant. This is denied by the Respondent.

The Complainant submitted complaints under the Act to the Workplace Relations Commission, ‘WRC’ alleging discrimination on grounds of race, gender and family status. The complaint on grounds of race was not upheld by an Adjudication Officer, ‘AO’, was not appealed and was not before the Court. The complaints on grounds of gender and family status were upheld by the AO, who awarded €33,600 to be paid to the Complainant in compensation.

The Respondent appealed this Decision.

Summary of Complainant’s arguments.

The Complainant was moving from South Africa to Ireland and sought employment as a Pastry Chef. Following an interview and trial in December 2018, the Respondent confirmed that they would hire her. She was due to commence employment on 1 March 2019.

In January 2019, the Complainant contacted Migrant.ie for assistance with her Work Permit application process.

The Complainant was asked to commence work on 25 February 2019 and she felt under pressure to do so. She was paid in cash for work carried out in February. She advised Ms. Dany O’ Leary, mother of Mr David Aranda, that she did not have a PPS number. She continued to work in March. She was unable to work on 16 March 2019 as she hurt her back. She advised the Respondent but received no reply.

In order for the Work Permit process to be completed, the Complainant arranged to meet with Ms. O’ Leary on Sunday, 24 March 2019. Ms. O’ Leary could not meet her but they communicated by whatsapp call. The Complainant advised that she needed her employer’s signature to finalise her application. She also advised that she was pregnant. Ms. O’ Leary told the Complainant that she knew she was pregnant already but that she was no longer sure if they wanted to go ahead with the Complainant’s work permit application. She said that she would let her know after she spoke to Mr. Aranda.

The Complainant became stressed and the following day she messaged Mr. Aranda asking to speak to him and to say that she was not feeling well. Mr. Aranda read the message but did not reply.

On that day, the Complainant advised Migrant.ie of this development.

The Complainant returned to work on 26 March 2019. On that date, Ms. O’ Leary messaged her seeking a PPS number. The Complainant replied to say that she did not have a PPS number, that she could only get one when she had a Work Permit and that she sought confirmation of the Respondent’s continued support with this. Ms. O’ Leary texted ‘Yes’ in reply and ‘Get married’, presumably as a joke.

Ms. O’ Leary sought an older PPS number. The Complainant indicated that she did not have one and that it took five days after a Work Permit application was filed.

On 29 March 2019, the Complainant texted Mr. Aranda and informed him that she was pregnant and in a lot of pain. This was read but no reply was sent.

In order to finalise her application, the Complainant travelled by bus from Killarney to Cahirsiveen on 30 March 2019 to meet Ms. O’ Leary to obtain her signature on the application form. Ms. O’ Leary told her that she had decided not to sign the form, that Mr. Aranda was not going to sign the application and that she would not be paid for work done in March as she did not have a PPS number. The Complainant sought a reason and was told that she would get one by e-mail. No e-mail has been forthcoming.

The Complainant asked if she should return to work on Monday, 1 April 2019 and was told that she should not. When she asked about outstanding pay, she was told ‘No PPS, no pay’. Ms. O’ Leary was rude throughout and the Complainant left in tears.

The Complainant contacted Migrant.ie that afternoon to advise of developments.

When the Complainant did not turn up for work on 1 April 2019, there was no contact from either Mr. Aranda or his mother.

At no stage did the Respondent raise any issue with the Complainant regarding her suitability for the role. No attempt was made to meet her. It is clear that the sole reason for her application not being processed is that the Respondent was aware that she was pregnant.

The Complainant was an employee for the purpose of s.2 of the Act as she had entered into works under a contract of employment, signed on 3 January 2019, she began work on 25 February 2019 and was paid €450 for work completed.

The Complainant took all reasonable steps to obtain a Work Permit.

The Respondent discriminated against the Complainant by denying her the opportunity to continue in employment, by denying her the opportunity to finalise her application and by denying her money owed for work done.

There is a clear breach of the Complainant’s rights as per s. 6(2A) of the Act.

The Complainant’s pregnancy shifts the burden of proof to the Respondent as it meets the ‘prima facie’ requirements.

Article 10 of the Pregnancy Directive Council Directive 92/85/EEC requires an employer to set out ‘duly substantiated grounds in writing’ where a pregnant worker is dismissed. It is not sufficient to say that the dismissal was for other reasons. Some persuasive paper trail of an unrelated justification is required. There is no such justification in this case. Reference is made to the Court’s observations inAssico Assembly Ltd. v. Corcoran , EED 033/2003.

The Respondent has shown no reasons for the dismissal. The termination of employment so soon after the Respondent was advised of the Complainant’s pregnancy speaks for itself. There is a particular onus on an employer to respect the rights of a pregnant woman.

Pregnancy is a special, protected period, see Court of Justice of the European Union decisions inWebb v. EMO Air Cargo(UK) Ltd., Brown v. Rentokil Ltd. and Dekker v. Stichting Vormingscentrum.

To treat a woman less favourably due to pregnancy is to discriminate against her because she is a woman.

InMcGuirk v. Irish Garden Publisher Ltd., DESC-E-2007-031,it was noted that pregnancy is a protected period and that it falls to an employer to show that termination of employment during pregnancy is unconnected whatsoever with the pregnancy.

The Court is asked to apply the principles ofVon Colson v. Land Nordrhein- Westfalenin which it was held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive.

As per this Court’s decision inLee t/a Peking House v Fox EED036, the effects of discrimination are not just financial but also must take account of the distress and indignity suffered as a consequence.

The Complainant acknowledges the support received in the early stages of her progressing her application but this support ceased as a result of informing the Respondent of her pregnancy. The effects of the discrimination against her caused the Complainant not only to lose her job but it prevented her from securing her Work Permit even though she was at the final stage of the application process. It caused her partner and herself to suffer financial stress, requiring them to take out a sizeable loan.

The AO was correct in her findings.

Summary of Respondent arguments.

The Respondent denies the claim of discrimination.

The Complainant’s employment was subject to her securing the appropriate employment permits within the meaning of the Employment Permits Acts 2013-2014.

The Respondent agreed to support the Complainant’s application. The Respondent’s accountant assisted with queries raised regarding the application. However, the obligation was on the Complainant to obtain the necessary permit.

It is admitted that the Complainant worked for the Respondent from 25 February 2019 but, contrary to what is argued for the Complainant, it is clear from text exchanges between the Complainant, Mr. Aranda and Ms. O’ Leary that it was the Complainant who was actively seeking to commence work.

During the Complainant’s time in the employment, weaknesses in her performance were observed and these were cited to the AO but for the purposes of this appeal and the substantive grounds being relied on, it is not necessary to repeat these.

Text messages were received by Mr. Aranda from the Complainant on 16 and 25 March 2019 advising that she was not well. At this time, he was unaware of the Complainant’s pregnancy.

On the latter date, the Complainant communicated with Migrant.ie to advise of her pregnancy and to say that it looked as if her employer would not proceed with her application. She was advised that ‘if you are not going to work for him, ..we should bring your employer to WRC…because if you are pregnant, that is discrimination’. This is of note as Mr. Aranda had not spoken to the Complainant since she was last on the premises prior to hurting her back and she had no reasonable basis to believe that the Respondent would not continue to support her application. He was only informed of the pregnancy on 29 March when the Complainant texted him.

Ms. O’ Leary who had formed a personal friendship with the Complainant, and who had provided her with support and comfort, was informed of the pregnancy on 25 March. Despite contrary assertions, Ms. O’ Leary remained supportive of the Complainant’s application. This is confirmed in the text exchange of 26 March, which contradict the complaints made to Migrant.ie.

The Complainant asked Ms. O’ Leary to sign the relevant forms on 25 March but she informed the Complainant that this would need to be done by Mr. Aranda and that she should go to see him. The Complainant never spoke to Mr. Aranda about this.

The Complainant advised Migrant.ie on 30 March that the Respondent would not sign her application and would not be going ahead with it. On 31 March, the Complainant advised them that she would like to take the Respondent on. Thereafter, she did not attend for work and ceased all correspondence with the Respondent as she had decided to pursue a claim for discrimination.

At all material times, the Complainant had the benefit of advice and assistance from Migrant.ie but it is of exceptional note that no correspondence was entered into on her behalf in respect of the matters complained of and, taking account of Ms. O’ Leary’s support and friendship prior to the matters complained of, there was no reason why these could not have been resolved and clarified. Instead, the text exchanges with Migrant.ie reveal an intention to launch a claim of discrimination without discussion or ascertaining the Respondent’s position in respect of the intended application.

This indicates that the Complainant’s intention was to pursue a claim, this avenue having been highlighted by Migrant.ie in advance of the issues that have formed the basis of this complaint.

There are inconsistencies in the Complainant’s account that suggest it is unreliable.

She claims that the Respondent insisted that she start work on 1 March and that she felt threatened that her application would not be progressed if she did not agree. However, the text exchange reveals that she requested that she start work and that she was looking forward to doing so.

She claims that she informed Mr. Aranda of her pregnancy on 24 March, (see WRC Complaint form), but her own texts confirm that she informed him on 29 March, (after being advised to take the Respondent to the WRC). Mr. Aranda was never presented with the form for signature and M. O’ Leary’s text messages reveal that the Complainant was unwell and ‘at home all day’ on 24 March.

She claims to have met Ms. O’ Leary on 30 March to sign the application form and that Ms. O’ Leary refused to do so. In fact, Ms. O’ Leary advised her that Mr. Aranda’s signature was required. This was not unusual and Ms. O’ Leary had previously directed the Complainant to speak to Mr. Aranda regarding her salary. Ms. O’ Leary was not familiar with the employment permit application process.

The foregoing is relevant as it demonstrates the Complainant’s attempts to portray the Respondent in an unfavourable light and her own timeline undermines her claim of discrimination due to pregnancy.

There was no discrimination. There was no dismissal, the Complainant chose not to attend for work and, instead, chose to pursue the Respondent through the WRC, as is evident from her text messages to Migrant.ie.

If there was a dismissal, which is not admitted, it must be considered a constructive dismissal for which the Complainant bears the burden of proof.

The AO calculated compensation on a salary of €2800 per month whereas the agreed salary was €2000 per month.

The Respondent is unable to recall the category of employment permit sought. Ms. O’ Leary made a data access request of Migrant.ie in July 2020 that has not received a response.

It is possible that the Complainant would not have qualified for a Work Permit, so would not have been able, lawfully, to take up the role. On its face, it would appear that the Complainant would not have qualified. It was never the Respondent’s responsibility to advise the Complainant in respect of her prospects in securing a permit. There are limitations on the numbers of permits for particular types of employment. Therefore, the Complainant’s submission that the actions of the Respondent prevented her from applying for and obtaining a permit is fundamentally flawed.

A claimant must prove on the balance of probabilities that the primary facts on which they are seeking to rely raise a presumption of discrimination. It is only if these facts are established to the satisfaction of the Court and they raise such a presumption that the onus shifts to a respondent to prove that there was no infringement of the principle of equal treatment, seeMitchell v. Southern Health Board (2001) 12 E.L.R. 201.

The Respondent has a strong history as an equal opportunities employer, has employed people of various nationalities and of ten current employees, seven are women. The Respondent has always been supportive of pregnant employees and letters are submitted to the Court confirming this.

The failure of the Complainant to submit a comparator is fatal to her case, seeGrazulis v. First Bathroom Solutions DEC-E2010-135.

With the exception of her pregnancy, the Complainant cannot prove the facts on which she is seeking to rely. Her numerous accounts are inconsistent and unreliable and her own text messages reveal that before she had informed Mr. Aranda of her pregnancy or sought to have her application signed, the advice given to her was to pursue a complaint of discrimination. Mere speculation or assertions cannot be elevated to the status of facts, seeValpeters v. Melbury Developments Ltd. (2010) 21 E.L.R. 64.

The High Court decision inMulcahy v. Minister for Justice, Equality and Law Reform and Waterford Leader Partnership Ltd., (2002) 13 ELR 12noted that a co-incidence of an employee’s dismissal with the ending of pregnancy leave is not itself sufficient to raise an inference, ‘ (as opposed to a suspicion), that the reason for the dismissal was related to the pregnancy so as to shift the onus to establish that it was not on the defendant.’

As there was no valid contract, there could be no dismissal.

Without prejudice to the foregoing, if it is proposed to consider the Complainant’s claim for dismissal, it has to be regarded as a constructive dismissal. She never requested that Mr. Aranda sign the relevant form and, despite being in the workplace, never raised any concerns with him regarding his support of her application. As perJoe Lawlor Ltd. v. Guerin UDD1934,a claimant is expected to act reasonably and to provide an employer with an opportunity to address grievances. In this case the Complainant acted hastily and unreasonably.

Without prejudice to the above, if the Complainant succeeds on the grounds stated, the Court is asked to determine any redress on the basis of the limited amount of time that she attended the Respondent’s premises, the failure to engage with Mr. Aranda, the speculative basis on which it is presupposed that an employment permit would have been granted and the tenuous losses allegedly suffered by the Complainant who would not have been eligible for maternity benefit.

Witness evidence

Ms. Dany O’ Leary.

Ms. O’ Leary is a shadow director of the respondent, which is managed by her son, Mr. David Aranda.

The witness said that she had had a good relationship with the Complainant. She said that she had let the Complainant stay in her house while she was sourcing accommodation.

The witness said that there was no pressure on the Complainant to start her employment at any particular time but that the Complainant was anxious to start as soon as possible. The witness referred to a text from her to the Complainant on 20 February 2019 to say that Mr. Arandahad agreed that the Complainant could commence whenever she wished, to which the Complainant had responded with delight.

The witness explained that she ran a shop in Cahirsiveen that was supplied by the bakery in Killarney, which was run by Mr. Aranda. She explained that she had little involvement in the daily running of the bakery.

The witness said that she had a physical meeting with the Complainant on 25 March in the shop. The Complainant wanted her to sign the application but she told her to speak to Mr. Aranda. The Complainant advised that she was pregnant. The witness was pleased for her.

The witness said that between the two shops, 12 to 14 staff were employed of whom 5 were men and the rest were women. The business was used to dealing with pregnancy leave for staff, they were simply replaced while out and they resumed following their leave.

The witness denied telling the Complainant that the Respondent was not going ahead with the application for an employment permit. The witness said that the meeting took place at about 12 noon on 25 March.

The witness confirmed a text exchange on 26 March with the Complainant, in which she sought a PPS number as without this the Complainant could not be put on the books and the company’s accountant had told her that a PPS number was required. The witness said that she thought the Complainant had one. The witness said that she did not see any problem with the employment permit, about which she had advised the Complainant to speak to Mr. Aranda, and she thought the Complainant had a previous PPS number as she knew she had worked in Ireland previously. The witness said that she had no further contact with the Complainant.

The witness said that she did not meet the Complainant on 30 March. She denied ever saying that the Respondent was not going through with the application or that this was being re-considered due to the Complainant’s pregnancy.

The witness said that the €450 paid to the Complainant came from the witness’ own bank account and was to help the Complainant to survive.

The witness said that the Complainant never came back to work. She said that she knew the Complainant was pregnant and that she would not normally contact somebody who did not show up.

The witness said that she did not tell Mr. Aranda of the Complainant’s pregnancy as she did not see him and it was not a problem anyway.

Under cross examination, the witness said that she worked only in Cahirsiveen and did not hire the Complainant. That was a matter for Mr. Aranda.

The witness said that she was not aware that it was necessary to get a Work Permit in order to get a PPS number but she knew that the number was necessary to get paid.

The witness again denied that she had told the Complainant that the Respondent was re-considering its position regarding her application. She noted that she had confirmed that they were going ahead in response to a text query by the Complainant on 26 March and that she had sought a PPS number from the Complainant.

The witness said that she could not be definite about dates but that she did not believe she met the Complainant on 30 March and believed that the meeting was on 25 March.

It was put to the witness that the Complainant had made the hour-long journey to Cahirsiveen by bus to get her to sign the application but she was saying that the witness then told the Complainant to get Mr. Aranda to sign it and if, as she claimed, she was a friend of the Complainant, she could have done this by text.The witness said that she understood that the Complainant was also visiting family in Cahirsiveen.

It was put to the witness that, if she was a friend of the Complainant, she might have been expected to contact her when she failed to turn up for work to ask how she was, in response to which the witness said that she was very busy as she had two staff out and the Complainant was not working with her. She denied that she was aware that the Complainant was being let go.

In response to questions from the Court, the witness said that she did not think she had ever signed for a Work Permit and this was done by Mr. Aranda. She could not be sure if it was Mr. Aranda or her who had signed the Complainant’s contract.

Mr. David Aranda.

Mr. Aranda is the owner/manager of the Respondent.

The witness said that he did little of the office work in the business. The Respondent engaged a firm of accountants.

The witness denied putting any pressure on the Complainant to start work.

The witness said that he signed the Complainant’s contract.

The witness said that he often did not reply to texts from staff about their unavailability to turn up to work as he just filled in by doing the work himself.

The witness said that the first time he knew of the Complainant’s pregnancy was when he received a text at 04.38 on 29 March 2019 from her. He said that the Complainant returned to work on 26 March but made no attempt to speak to him even though he only worked a few metres away.

The witness said that after 29 March, he received no further communications from the Complainant. He assumed that she was unwell and would return when she was better. He explained that when staff were pregnant they just took their leave and returned afterwards.

The witness said that the first time he heard that the Complainant considered herself to have been dismissed was months later. He did not advertise her job until about 8 months later. If the Complainant had returned when she had her baby, her job would have been there for her.

Under cross examination, the witness agreed that he had interviewed the Complainant, that she had told him her nationality and that she needed to apply for an employment permit. He said that his mother told him that the Complainant had a PPS number from previously working in Ireland.

He said that the Complainant did 2/3 days’ training, that she was well qualified, that she had run her own business in South Africa and that she was experienced.

When it was put to him that the Complainant did not work in the same section as him, the witness said that there is only one section and that he is often there from 2am to 6pm.

The witness was asked what he did if an employee failed to show up for work? He said that if they did not want to work , they did not work. It was then put to him that for a small business it was not realistic to suggest that there were no consequences for being absent, to which the witness said he was too busy to check staff and he filled any gaps. He could do a staff member’s full day of work in a few hours.

The witness said that he was not in contact with his mother between 26 and 29 March.

The witness accepted that he should have replied to a text from the Complainant on 25 March.

The witness said he was not surprised to learn on 29 March that the Complainant was pregnant. He said that he did not reply as he was waiting for her to come back when she was better.

In response to questions from the Court, the witness said that nobody in the company looked after sick leave and related matters. He dealt with pay-related queries. When the Complainant was living in Cahirsiveen, his mother dealt with any questions from her.

The witness now accepted that he should have responded to the Complainant’s text. He said he was unaware of any issue regarding her application and he would have completed it if the Complainant had come to him but she never did.

The witness said that he did not require medical certification from absent staff and that he operated on trust. He confirmed that the Respondent did have sick pay arrangements.

Mr. Sean O’ Rourke

Mr. O’ Rourke is an outside Accountant engaged by the Respondent.

The witness said that he had been responsible for the Respondent’s accounts for ten years. He had access to the books, payroll etc and made VAT returns. He had helped with the Work Permit application by providing straightforward information on the company. He did not have a great deal of experience of such applications.

The witness explained that it was difficult to pay employees without a PPS number and that it was good practice not to pay until you had the number as so much centred around the number. The standard advice was to hold payments until you had the number. He had advised Ms, O’ Leary accordingly.

The witness said that it was easy to get a PPS number, all that was required was identity, reason and address. A letter of offer of employment would suffice. Once the Complainant had her contract, she should have been able to obtain her number, which was needed to access services such as health. It was just a number to allow claims to be made.

He said that Ms. O’ Leary had been keen to pay the Complainant.

Under cross examination, the witness said he was aware that the Complainant received advice from Migrant.ie and was relying on that advice. He said that he was aware, after the fact, that Ms. O’ Leary had paid the Complainant out of her own account.

In response to questions from the Court, the witness said that this was the first administrative problem that he had dealt with for the Respondent. They were good clients. He also confirmed that the Revenue site was clear regarding PPS numbers.

Ms. Jessica Padayacee.

Ms. Padayacee is the Complainant.

The witness said that she is South African, that she is a trained pastry Chef who ran her own business for 10 years. She said that she had come to Ireland in the summer of 2018 and had helped her partner in a kitchen but had not really been paid for this. She had stayed with him and she did not have a PPS number. She had spent Christmas in South Africa. Her partner wanted a job in Killarney and she had replied to an advertisement on Facebook for the job with the Respondent.

The witness said she had explained her work status at the job interview and that she would need a signed contract to apply to work in the country. She agreed that she would cover all costs. Her trial went well. Her visitor’s visa was ending on 10 January. She went to Cahirsiveen and both Ms. O’ Leary and herself signed the contract there.

The witness then started the process of applying for a Work Permit. She contacted Migrant.ie. There was a difficulty as she could only obtain a permit if her monthly pay was €2800 or above and she had agreed a rate of €2000. She needed to reflect this higher figure in her application and agreed with the Respondent to put this amount into the application, while advising that she would be happy to take the agreed amount of €2000.

The witness said that she felt under pressure to start as she was a new employee. There were no threats but there was pressure.

The witness worked from 5am to 12 noon, Monday to Saturday from 25 February to 16 March 2019. She did not know she was pregnant but on that latter date, she was unwell and unable to attend work. She texted Mr. Aranda to advise him.

The witness discovered that she was pregnant on 18 March.

The witness had been friendly with Ms. O’ Leary who had let her stay with her for a few weeks. The witness had been staying in a hotel. Ms. O’ Leary was going back to France for a while and it was agreed that the witness would stay in her home and look after her cat. Ms. O’ Leary had assisted with the documentation for the witness’ application.

The witness moved to Killarney on 23 February. This was the first time that she was asked for her PPS number She explained that she did not have one and could only get one when she had her Work Permit.

The witness did not inter-act with Mr. Aranda about the application and Ms. O’ Leary pressed her for a PPS number. In the absence of one, she was paid €450 in cash.

On Sunday, 24 March the witness contacted Ms. O’ Leary by whatsapp call to tell her she was pregnant because Ms. O’ Leary had been good to the witness. Ms. O’ Leary told her that she knew. She also told her that they were not going ahead with the application and that she had to speak to Mr. Aranda.

The following day, the witness messaged Migrant.ie. The witness reiterated the evidence regarding text exchanges with Migrant.ie and with Ms. O’ Leary.

The witness was relieved because of the text reply of Ms. O’ Leary on 26 March that seemed to confirm that the Respondent was going ahead with the application. She returned to work on 26 March and worked there for the next few days. She did not feel the need to speak to Mr. Aranda as she was dealing with his mother and she never found the right moment. She felt ignored and that he was not interested. This led her to be stressed but she did not feel it was appropriate to speak to him in that setting.

The witness decided to visit the shop in Cahirsiveen physically on Saturday 30 March. She spoke to Ms. O’ Leary and asked her to sign the application. She said ‘No’. She said that she had spoken to Mr. Aranda and that they were not going ahead. She asked for a reason and explained that she needed the signature. Ms. O’ Leary said ‘No’ very rudely. She asked if she should go to work on Monday and was told that there was no need. She asked about money owed to her and was told ‘No PPS, no pay’.

Note-as there is a dispute about whether there was a meeting on 30 March, the Complainant’s representative produced an electronic booking by the Complainant of a bus seat from Killarney to Cahirsiveen for that date. Noting that this did not prove that the meeting had occurred, the Respondent’s representative objected to this being entered into evidence. The Court noted that it proved only that the Complainant had purchased a bus ticket for that date.

The witness said that she was upset and concerned about the possibility of being deported. She took some time before deciding to take on these proceedings. When asked why she had not contacted Mr. Aranda, she noted that he had not responded to her texts. The witness noted that her work status had changed with the birth of her Irish born child.

Under cross examination, the witness accepted that she had not been threatened or intimidated into starting work. It was put to her that she had made these allegations in her claim to the WRC, to which the witness replied that they were not her words and that she had been assisted by Migrant.ie in completing the form. She said, however, that it was made clear to her that she had to start or the Respondent could change their minds. When it was put to her that she was changing her story, the witness said that she had not been asked previously about the conversation when she met the Respondent.

It was put to her that when she was asked previously if she had been put under pressure, she had not referred to the conversation, that she was constantly changing her story and that the texts showed that it was her who was enthusiastic about starting. The witness said that everything was based on the Respondent going ahead with the application.

It was put to the witness that she had done a good job of showing enthusiasm, to which she replied ‘Yes’ in respect of the Respondent not changing their minds.

The witness was asked if she was sure there had been no meeting on 25 March? When she confirmed that she was, it was put to her that this was at variance with the statement by the AO in the Decision that the Complainant had arranged such a meeting. At this point, the Complainant’s representative interceded to say that this reference was a mistake on the part of the AO and did not accord with the evidence given at the adjudication hearing.

The witness was asked why, after receiving Ms. O’ Leary’s text on 26 March confirming that the Respondent was going ahead with the application, she had not spoken to Mr. Aranda? She said that she did not feel it was appropriate in that setting and that she felt he was giving her the ‘cold shoulder’. She wanted to speak to him one to one and not with others around.

The witness was asked why she stopped communicating when they could have chatted and resolved matters? She said that she felt unwanted and disregarded. Her stress was relieved as she was going to meet Ms. O’ Leary. She decided to travel to Cahirsiveen to get the signature while matters were still positive.

It was put to the witness that it would have been easier to speak to Mr. Aranda, to which she replied that he made her feel ignored.

The witness was asked why she did not raise a grievance rather than lodge a complaint with the WRC? She said that she did not do so because she was told on 30 March that the Respondent was not proceeding with the application. When it was put to her that she could have written a letter, the witness said that Ms. O’ Leary had very rudely just said ‘No’.

Reference was made to a text on 31 March in which the witness said that she did not feel comfortable there now. It was put to her that this suggested she expected to remain in the employment. The witness reiterated that she was dismissed. She said that she was not aware of the option of writing to Ms. O’ Leary. She had expected help from her but had been thrown aside.

It was put to her that she had not asked how the situation might be turned around and that her texts all refer to compensation and she was asked if it was all about the money? The witness denied this and noted that she had to survive with no income. The witness said that she stood by her evidence that she was dismissed on 30 March in the shop when it was confirmed that the Respondent was not going ahead with the application.

The witness was asked why she had originally alleged discrimination on grounds of race only to withdraw the allegation? She said that this had been clarified at the adjudication hearing.

In response to questions from the Court, the witness said that she had never been told by Migrant.ie to go to Mr. Aranda on work-related matters.

The witness denied that there had ever been difficulties in her work or between her colleagues and her.

Implications of Sobhy v Chief Appeals Officer and Ors (2021) IEHC 93.

The question of whether the Complainant could, or could not, rely on a contract of employment while not in possession of a Work Permit was raised in the parties’ initial submissions at a time when the outcome of the above case, then before the Supreme Court, was awaited.

Prior to the resumption of the hearing, the Court received submissions from both parties on the effect of the outcome of the Supreme Court judgment.

The following are summaries of the submissions;

Summary of Respondent arguments.

The Supreme Court reversed a decision of the High Court and determined that Ms. Sobhy was not entitled to claim maternity benefits on foot of an illegal contract. In citing ‘FAS v Abbott, (unreported, Supreme Court)’ and ‘Hussein v. Labour Court and Younis, (2012) IEHC364’, the Supreme Court noted that ‘the courts refrain from enforcing an illegal contract’. While noting some subsequent change in position, the reasoning in ‘Hussein’ was held to be still valid in that the employment contract in that case did not involve an ‘incidental illegality’ but was substantively illegal in the absence of a work permit.

While the Court noted that the Oireachtas had provided for certain scenarios in which a party to an otherwise illegal contract can invoke remedies, it noted that the legislature had not bound the executive to accept an unlawful employment relationship as valid for the purpose of founding an entitlement to something outside of the employment relationship.

The Court noted the more nuanced approach set out in ‘Quinn v IBRC, (2016) 1IR1’ but, even having regard to same, concluded that the contract of service must be regarded as an illegal contract.

In the instant case, the Complainant acknowledged that at no time while working with the Respondent did she have a Work Permit, at all times she was aware of the need for same and she deliberately falsified her salary figure so as to satisfy the income threshold required for a permit. These actions take her case outside of any ‘incidental illegality, as, even if the permit was granted, it would have been invalid due to the misleading information submitted by the Complainant. Even if the test in ‘Quinn’ was applied, such deliberate dishonesty would militate against overlooking the illegality of the contract.

Nowhere in the Act is there a provision to allow an otherwise illegal contract to be relied upon.

Accordingly, the Court does not have jurisdiction to hear this complaint.

Summary of Complainant arguments.

This case is distinguishable from that of ‘Sobhy’, in which case Ms. Sobhy had worked in Ireland without a Work Permit for close to seven years, whereas the Complainant in the instant case signed a contract on 3 January 2019 and began the process of seeking the necessary legal authorisation to work in the State, with the assistance of Migrant.ie. At all times, she sought to regularise her position and on a number of occasions she advised the Respondent of her lack of a PPS number.

By mid March, the Complainant had progressed to the point that she required the Respondent’s signature in order to complete the permit process. She also advised that she was pregnant. The Respondent refused to sign.

The steps taken by the Complainant distinguish her from Ms. Sobhy.

Throughout the ‘Sobhy’ judgment, the Court is conscious of the harsh consequences an employee faces as a result of a contract being deemed illegal. In the instant case, as a result of the Respondent’s actions, the Complainant had to source new employment and re-embark on a lengthy application process, while pregnant.

The ‘bona fide’ steps taken by the Complainant to comply with the statutory requirements and the harsh treatment of her by the Respondent show distinction from the facts in ‘Sobhy’.

If the Complainant had not been open and honest with the Respondent about her pregnancy, her application would have been signed and processed and no issue would have been raised regarding the legality of same.

Deliberation.

The appeal before the Court is that the AO erred in finding that the Complainant had been discriminated against on gender and family status grounds due to pregnancy. As the Court has noted previously, pregnancy, being biologically unique to women, can give rise to complaints of discrimination on gender grounds. It is not, itself, an automatic basis for a complaint on grounds of family status. In response to a query from the Court, the Complainant’s representative clarified that no case was being made on grounds of family status. The issue before the Court, therefore, concerns a complaint solely on grounds of gender.

Ordinarily, the Court lists the applicable law prior to setting out its reasoning. In this case, however, the first issue for the Court is whether or not the law is, in fact, applicable.

The Court heard a great deal of argument on this issue and much emphasis was placed on behalf of the Respondent on the Supreme Court judgment in ‘Sobhy’. It is arguable as to whether that case has any application to the facts of the instant case as, at its core, it would appear that the Supreme Court made its judgment on the basis that the State could not be expected to take on liabilities because of the existence of an illegal contract between two parties, neither of whom was the State. Whether that judgment has any implications for the enforcement of employment rights in cases where contracts of employment are illegal and are argued to be void is a matter for possible further consideration in cases other than the instant case as it is not necessary for the Court to give consideration to that issue in the instant case.

The appeal before the Court arises from a complaint that the Respondent refused to sign an application for a Work Permit. The Complainant argues that the reason for this refusal was her pregnancy and that the consequence was that she lost her job. As a result, she argues that she was dismissed due to pregnancy and, thereby, discriminated against on grounds of gender, contrary to the Act.

In response, the Respondent denies any act of discrimination, denies any dismissal and notes that Mr. Aranda was never actually asked to sign the application.

The application form, if submitted, was going to contain an inaccurate figure in stating that the Complainant was earning €2800 per month, the minimum necessary, apparently, for her to qualify for a Work Permit, while, in fact, she would actually be earning €2000. The Respondent argued that the Complainant deliberately falsified this figure, to which the Complainant’s representative argued that she did so on advice from Migrant.ie.

The question for the Court to consider is whether the failure by the Respondent to sign an application that, both parties acknowledge, would, if submitted,contain such an inaccuracy can create a basis for a complaint under the Act?

In the view of the Court, it would be unthinkable for it to issue a Determination that an employer is compelled to sign an application that contains an inaccuracy that may very well render them liable, should they do so, to potential prosecution and, at the very least, would open them to the accusation of moral, if not legal, dishonesty.

As a consequence, the Court need look no further. The Respondent is obligated to act within the law and is absolutely entitled to protect its reputation. There is no obligation, and there can be no obligation, on the Respondent to justify its failure to sign the application if, by so signing, it would involve submitting false information to the appropriate authorities.

The Court did give extensive consideration as to the reasons for the Respondent’s failure to sign the application, having regard to the significant and necessary protections provided to pregnant women under the Act. Ultimately, however, the Court came to the only possible view available to it that, notwithstanding any potential question marks as to motivation, the Court could not possibly find that an employer is under an obligation to sign an incorrect or false declaration. As a result, the very basis for the complaint is not well founded and the appeal must succeed.

Determination.

The Decision of the Adjudication Officer is overturned.

	Signed on behalf of the Labour Court
	Tom Geraghty
COR	______________________
10 August 2022	Deputy Chairman