ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030056
Parties:
| Complainant | Respondent |
Parties | Rachel Matthews | Muintir Childcare Limited |
Representatives | Ruairi De Burca De Burca Greene Solicitors | Ciaran Maguire Simon McAleese Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040009-001 | 23/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040009-002 | 23/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040009-003 | 23/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040009-004 | 23/09/2020 |
Date of Adjudication Hearing: 15/07/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Unfair Dismissal Act 1977 (as amended) sets out in Section 6 that A dismissal is deemed to be an unfair dismissal unless there were substantial grounds for justifying the dismissal.
Section 6(2) clarifies that the dismissal shall be deemed to be an unfair dismissal if it results wholly or mainly from one of the (listed) reasons which includes
(f) the employee’s pregnancy, attendance at ante natal classes, giving birth, breastfeeding or any other maters connected therewith
A pregnant employee is given extra protection under the Unfair Dismissals Act and that protection is applicable irrespective of the duration of the employment. The Complainant is not required to have one year’s continuous service to qualify for the protection afforded in the UD Acts. However, the burden of proof in such cases is on the Complainant to prove that the dismissal was wholly or mainly due to the pregnancy. In this regard the Employment Appeals Tribunal decision in Pedreschi -v- Lemons Beauty shop UD591/1999 is worth considering:
“The combined effect of 6(1), 6(6), 6(2) and (6)(2)(f) do not appear to alter the basic legal principle which has been consistently held by successive divisions of the Tribunal to apply in these cases , namely, that in order to seek protection of the Unfair Dismissals Act, as amended, the claimant herself must bear the burden of proof in showing herself to be entitled to this protection. This she does by showing her dismissal was on the grounds of pregnancy.
The Claimant must show the Tribunal that it has jurisdiction in the matter. Where the claimant successfully shows that her dismissal was on balance of probabilities, on the grounds of of pregnancy or matters relating thereto, the Tribunal will assume jurisdiction in the matter.”
Where the employee is pregnant there is an added onus on the employer to demonstrate it has followed fair and appropriate procedures when disciplining such an employee up to and including imposing a sanction of dismissal. Exceptions do arise and such exceptions are recognised in Art 10 of Council Directive 92/85/EEC which expressly states that Pregnant employees can be dismissed in exceptional circumstances not connected with their condition which are permitted under national legislation and/or practise.
Once an employee has disclosed the fact of pregnancy the employee enters a protected period of time.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions and/or enactments of Acts (generally protective employment Acts) which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.
The Complainant has brought complaint of a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Complainant has also issued a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Background:
Following the termination of her employment in June of 2020 the Complainant herein issued a complaint form dated the 23rd of September 2020. The complainant believes she was unfairly dismissed by reason of the fact of her being pregnant. In addition, the Complainant believes she is owed Notice and Annual leave payments. I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard I have explained that emergency legislation is pending which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of said oath/affirmation. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. |
Summary of Complainant’s Case:
The Complainant gave evidence on her own behalf and her evidence was tested by the Respondent. I was provided with a comprehensive submission as to facts. The Complainant was cross examined by the Respondent’s rep. The Complainant maintains that her job description changed in the course of the employment such that the parties knew she was no longer bound by the Fixed Term Contract and therefore her Dismissal was Unfair as it related solely to the fact of her pregnancy. |
Summary of Respondent’s Case:
The Respondent was represented by a witness NC who owns and operates the workplace. I was provided with a detailed written submission. The Respondent was represented. The Employer is stating that the termination of the Contract of Employment related only to the operation of law contained in the Contract which was a fixed term Contract due to expire on the 24th of June 2020. A fixed term Contract is a contract of a specific length agreed between employer and employee from the outset. Dismissal at the end of a fixed term or specified purpose contract may be considered unfair under the UD Acts. However, the employer can prevent this by meeting three conditions: - 1 The Contract must be in writing and must set out the specific duration of the fixed term contract or the in the case of the specific purpose contract – the object of that said contract. 2 The contract must be signed by both parties 3 The Contract must contain a specific clause stating that the expiry of the contract will not make the employer liable to a claim under the Unfair dismissal’s legislation. On the face of it, these three requirements have been satisfied.
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Findings and Conclusions:
I have carefully considered the evidence adduced in the course of the hearing. The Complainant came to work with the Respondent childcare facility on the 28th of August 2019. She had worked previously in childcare and had applied for the position of childcare worker in a playschool room. In fact, she was ultimately offered a role under the Access and Inclusion Model (AIM) programme, which promotes the inclusion of children with disabilities to meaningfully engage and participate in early childhood care and education. The Complainant indicated in evidence that she was not designated to a particular child but was an extra staff member. It was explained to me that the Complainant was not a key worker in the childcare roles as she only had level 5 qualifications. The Complainant said she was very happy in the workplace. The Employment commenced on foot of a fixed term contract to last ten months up to the 24th of June 2020 – in line with the academic year. The AIM grant can only ever cover a maximum duration of 10 or 11 months as it does not operate through the summer. The Contract was signed and understood and was explicit in its terms. The Respondent drew my attention to the fact that clause 6 of the Contract specifies that any change to the Contract will be notified in written form and only then will the variation form a part of the Contract. In February of 2020, the Complainant had a meeting with the owner NC as well as her own Manager L. She was asked if she was happy to move into the role of teacher’s assistant as there was a member of staff going out on maternity leave. The role would involve new skills including the learner journals which she’d not done before. The Complainant says that she had understood this constituted a new job offer and that this was agreed between them and even documented - though I was not provided with any such document. The Respondent whilst agreeing there was a change in day to day activities/tasks denies that this constituted a new or different job offer and no new job offer was ever agreed between them. The Respondent said any change would be documented in an email at the very least and no such email exists. The Complainant says that in and around this time she was also asked as to her availability in the July and August period when the facility took in a smaller number of children. The Complainant said she’d be available though not for one week in August as she had a holiday planned. Everyone was happy with this arrangement she says. In March 2020 the creche and childcare facility was forced to close down by Government Order. The staff were all put on the Temporary wage subsidy scheme. I understand that the AIM funding might have ceased altogether at that time and the Complainant was covered under the TWSS or PUP instead. The staff continued to work from home preparing course work and upskilling etc. I was told that there is a TUSLA imposed obligation on all staff to ensure their training is up to date. Manual handling, food preparation and first aid are all skills required in the workplace. Then at the beginning of May the Complainant notified her employer that she was pregnant. The Complainant says that NC was delighted for her and they even discussed the baby being brought into the facility as early as four months. The workplace was due to re-open in a scaled back version on about the 18th of May. The Complainant went in and was surprised she said to note that there were two or three extra members of staff in the workplace helping to set up that first day to ensure safe distancing guidelines were being implemented. However, the Complainant knew that the owner was in the process of putting together a new, sister facility and couldn’t know what capacity these persons were engaged in. The Complainant confirmed this was the only day that she was in the workplace in May of 2020. In early June NC met with the Complainant to discuss the issue of her health given her pregnancy and the ongoing covid pandemic. I am inclined to accept that NC was right to be concerned. This was the early stages of the pandemic. It was pre-vaccination and there was little knowledge or understanding of the possible effect of covid on a pregnant mother and baby. NC suggested that the complainant might want to consider the option of going out on sick leave, but the complainant did not want to do that. In her evidence he Complainant said that she felt NC was annoyed by this refusal. In the end, the Complainant said she continued working but was very much kept separate and apart from other staff members. She acknowledged in evidence that the work levels had dropped as the creche only catered at this time to front line staff. There was very little work there for all the staff. Then on the 17th of June NC told the Complainant that there wasn’t really enough work for her to do at the moment and that she may as well finish up and head home. The Complainant said that she was still working on the journals but the decision had been made. The complainant says she was very surprised as there had been no issue or inkling that she was going to be terminated. She found out that other members of staff were told that she was leaving. The Complainant noted that the other new member s of staff were all being put on the works what’s app group when she was being removed. The complainant wrote an email on the 18th of June to NC and asking why she had been dismissed and the Complainant says that the letter/email of response detailed – for the first time- that the dismissal was on foot of the natural expiration of the Fixed term Contract which was due to expire on the 28th of June. NC explained that they had agreed in their conversation on the previous day that as there was no work for her, she would take the last week (expiring on the 28th) as unpaid leave. The Complainant denies that there was any reference to the expiration of the contract in the meeting. She also denies that she had agreed to take a week of unpaid leave as suggested. In fact, she believed on foot of earlier conversations had with NC in and about the workplace that she, the Complainant, would be working into the months of July and August. It was put to the Complainant that the Employer terminated this Contract of Employment by reason of the expiration of the Contract of Employment and that both parties knew that this Contract was due to end on the 24th of June. The Complainant agreed that quite apart from the email sent on the 18th of June she was also provided with a formal letter of the 17th of June which confirmed that her employment as an AIM support staff member was ending in conjunction with the end of the fixed term Contract. This letter also detailed the issue of holiday pay that would become payable. The Complainant agreed that she had received that letter. In her evidence the Complainant insisted that the Respondent had said in the meeting of the 16th that she would get up to two weeks pay. The Respondent accepted that there had been some discussion (presumably in the February 2020) concerning the Complainant’s availability to cover holiday leave and staff shortages in the July and August months. The Respondent would have been happy to retain the Complainant in some capacity; however this would not be funded through AIM. However, this conversation was casual and had taken place before the pandemic, and its effects, hit the workplace. The Respondent emphatically put to the Complainant that the fact of her being pregnant was not an issue and was not a consideration in the termination of the employment. The Respondent insists it was abiding by its duty of care in having a conversation about her safety in the workplace. I accept that this was a reasonable and precautionary approach to take and would be in no way critical of the Respondent in this regard. NC gave evidence on behalf of the Respondent. It was put to me that other members of staff who continued in the workplace were permanent employees and in most cases key workers. Their remuneration was not sub vented by the AIM scheme. The Complainant worked in a support role – supporting the room. In most cases now as work as being done online there was no “room” to support. NC indicated that the AIM monies were not guaranteed from year to year and she could never give that assurance to an individual taken on for a ten month Contract that the work would continue after that. Concerning the issue of annual Leave. the Complainant when asked, confirmed that she only worked 6 hours in May and that the annual leave was calculated on the number of hours worked in any week or month. The Respondent conceded the six hours in May had not been included. The Respondent opened up a table of the hours worked and from which they had calculated annual leave. The Respondent made the case that the Complainant had used up 5 days of annual leave between the 1st of January and the 24th of June 2020 Regarding the issue of Notice, the Complainant was asked if she did not agree that there were hardly any children in the Creche in the June of 2020 and that the Fixed term Contract was terminated early as there was no reason to keep her on. She agreed with this. On balance I am satisfied that eh Complainant’s employment was not terminated by reason of the fact that she was pregnant. The Complainant was let go by operation of law when her Fixed Term Contract expired. This happened against a backdrop of a worldwide pandemic which created so much uncertainly in this workplace that the Employer was forced to let go an employee who she might otherwise have hoped might continue on a casual basis and/or qualify for another AIM grant in due course. At no stage did the Employer guarantee ongoing employment and the Complainant was simply mistaken in believing that she had. I am not satisfied that the Complainant was paid one week of Notice and I note that neither the letter of the 17th nor the email of the 18th reference Notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00040009-001 – this claim is well founded as the Complainant’s hours for the month of May 2020 were not taken into consideration and I require the Employer to pay €100.00 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00040009-002 - This claim regarding Bank Holiday pay was withdrawn Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00040009-003 – this claim is well founded and I required the Employer to pay to the Complainant the sum of €450.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00040009-004 – The Complainant was not Unfairly dismissed by reason of her pregnancy |
Dated: 25th February 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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