Complainant

Respondent

Parties

Svetlana  Grodzicka

Astra Leisure and Ultra Fresh Services Limited

Representatives

Claire Bruton B.L. instructed by  McGuigan Solicitors

 Karen Walsh B.L. instructed by Garrett J. Fortune & Co Solicitors

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-00039322-001

21/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039322-003

27/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039322-004

27/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00039322-005

27/10/2020

The complainant was employed by the respondent from 27th November 2017 until on or about 2nd March 2020. The complaints relate to allegations of discrimination on the family status and gender grounds when it is alleged that the complainant was dismissed while on maternity leave. The respondent’s position is that the complainant resigned prior to commencing maternity leave. The complainant, in her complaint narrative also refers to herself as “foreigner” indicating that this was another reason why she felt she was discriminated against and was not permitted to return to work following a period of maternity leave in August/September 2020. The issue of not being permitted to return to work forms the basis of the complaint submitted in accordance with the provisions of the Maternity Protection Act, 1994. There are also two complaints submitted in accordance with the provisions of the Minimum Notice and Terms of Employment Act, 1973, which appear to be duplicates but relate to the complainant’s assertions that she did not receive her statutory minimum notice entitlements when she was dismissed in March 2020. In respect of these complaints, the matter will be addressed under CA-00039322-003. Complaint applications CA-00039322-004 is dismissed as a duplicate complaint.

Timing of the complaints

The Equality complaint is recorded as having been received on 21st August 2020. On that date an ES1 form was received by the Workplace Relations Commission (WRC) from the complainant relating to allegations of discrimination against the respondent. The ES1 form is completed for the purposes of notifying a respondent where discrimination may have occurred in relation to the provision of goods and services contrary to the provisions of the Equal Status Act, 2000 and where a complaint to the WRC is being contemplated.

The complaint concerns allegations of discrimination within the employment context and following further correspondence from the WRC to the complainant, a complaint was received on 27th October 2020 in relation to the alleged unfair dismissal under the Unfair Dismissals Act, 1977 and alleged breaches of the Maternity Protection Act, 1994 and the Minimum Notice and Terms of Employment Act, 1973. The alleged unfair dismissal complaint was withdrawn in favour of the discriminatory dismissal complaint submitted in August 2020.

Having considered the timing of the complaints, I accept the discrimination complaint as having been received on 21st August 2020. This claim is therefore within time and no extension of time is required in relation to this complaint.

In respect of alleged breaches of the Maternity Protection Act, 1994 and the Minimum Notice and Terms of Employment Act, 1973, these complaints were received for the first time on 27th October 2020. The complaint relating to notice entitlements is outside of the 6-month period provided by the legislation. An extension of time will be considered in respect of that complaint and will be addressed later in this decision. The complaint in relation to an alleged breach of the Maternity Protection Act, 1994 will be addressed in the context of whether the complainant was not permitted to return to work following maternity leave in and around September 2020. The issue of whether she resigned from her employment or was dismissed will inform if this complaint succeeds.

Initial hearing

This matter initially came on for hearing on 18th January 2022. In advance of that hearing the respondent principal sought an adjournment as he was mistakenly of the view that the hearing was in fact a mediation of the complaint. As the respondent needed legal advice in relation to the complaints, I adjourned the matter to be heard at a reconvened hearing scheduled to take place on 22nd February 2022

Supplemental submissions.

The respondent availed of the opportunity to submit supplemental submissions after the adjudication hearing of 22nd February 2022 had concluded. The final date of receipt of supplemental submissions and the complainant’s responses was 28th March 2022.

The complainant contends that she was discriminated against on the grounds of family status and gender and was dismissed for discriminatory reasons while on maternity leave which commenced on 2nd March 2020. The complainant also alludes to being the only person not retained in employment and that she was the only “foreigner” who had their employment ceased.

Legal Submissions

Counsel for the complainant outlined the provisions of Irish and European Law in respect of the protection to be afforded to pregnant women in employment. Counsel stated that the complainant was subject to a discriminatory dismissal without due cause and without notice while on maternity leave in breach of the provisions of the Employment Equality Acts, 1998 and the Maternity Protection Act, 1994.

The complainant’s evidence.

The complainant gave evidence in relation to the complaint. The complainant outlined that she commenced working for the respondent in 2017 and was initially paid €9.50 per hour and subsequently €10 per hour and was in receipt of €11 per hour when her employment ended.  The complainant stated that she commenced a job as a music teacher in January 2020 and at that point indicated to the respondent that she needed to take Tuesday, Wednesday, and Thursday off work each week to attend to her other job. The complainant stated that she could work the weekends for the respondent if needed but that if she could not get those three days off, she would leave. The complainant stated that she went on maternity leave early as she was being bullied by another member of staff and was not able to continue working at that time. The complainant confirmed that it was her intention to return to work after her maternity leave and she did not resign. The complainant confirmed that she knew the business was being sold and that it re-opened in July 2020 in line with government guidelines at the time although a new owner did not take over the lease on the business until October 2021. The complainant stated that she was not given the opportunity to return to work after her maternity leave in September 2020 and in October 2020 commenced employment at a GP’s practice working as a Medical Receptionist for 20 hours per week.

It was confirmed by the complainant in cross examination that, when she began teaching music in January 2020, she sought the three days off or she would leave and that she stated that if needed, she could work at the weekend for the respondent. It was also put to the complainant that she said she was “finishing up” in February 2020 but would come back in September “if there is a job for me.” The complainant stated that she meant she would be back from maternity leave in September 2020 if there was a job for her as she was aware the business was in the process of being sold. The complainant denied that she said she was “finishing up” but acknowledged she did say that she could not continue to work at that time as she was being bullied and had decided to take her maternity leave early. The complainant stated that the bullying she experienced took the form of name calling as well as being sent home early and the person who was bullying her was unhappy with the complainant seeking to change shifts to work at the weekends as it wasn’t suitable to her and other staff.

Supplemental submissions

In supplementary documentation received on 28th March 2022, the complainant’s representative stated that there was no evidence given at the adjudication hearing that the complainant resigned from her employment, nor was it stated by the complainant or put to her that she had left her employment to go and work as a music teacher.

The respondent contends that the complaints are out of time on the basis that the complaints were submitted on 27th October 2020 which is outside of the statutory 6-month period for referring complaints to the WRC. The respondent further added that it was not aware of the correspondence sent to the WRC on 21st August 2020. Nothwithstanding its position on the timing of the complaints, the respondent contends that the complainant was not subject to a discriminatory dismissal as she terminated her own employment by resigning prior to the commencement of maternity leave.

Supplemental submissions

In its supplemental submissions, the respondent’s representative contends that the complaints of 21st August 2020 refer to alleged discrimination on the family status ground. The respondent contends that no discrimination complaint has been lodged in relation to the race ground as asserted by the complainant in her complaint form narrative that she was the only person not re-employed following the re-opening of the business because she was a “foreigner.” The respondent reiterated its position that the complainant resigned from her employment to take up teaching in a music school and that this was the clear understanding of the complainant’s employer at their meeting in late February 2020. On that basis, the respondent contends that the complaints should fail.

Evidence

The respondent principal stated in evidence that the complainant had sought three days off during the week and to work weekends which could not be facilitated as the weekend staff were unable to work mid-week. The respondent said that in February 2020 the complainant told him that she was leaving having said, “I can’t take this anymore” in relation to the issues around shift swops and the difficulties that this had caused. The respondent said that he presumed the complainant was leaving permanently and that his subsequent confirmation of the complainant’s employment being ceased was, in his mind, a confirmation of her resignation stating that he was acting in respect of her wishes to leave the employment.

In cross examination, the respondent stated that he had not sought a letter of resignation from the complainant, nor had he sought letters from others who had previously resigned. The respondent also stated that he had not asked the complainant to reconsider her resignation as she had made it clear to him that she wanted to leave her employment.

The Applicable Law

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A. (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

Findings

The issue for consideration in this complaint is if the complainant was subjected to discrimination on the grounds of gender and family status by being dismissed while on maternity leave.

The complainant and a principal of the respondent gave evidence at the adjudication hearing on 22nd February 2022. The complainant stated that she did not resign as contended by the respondent and had always intended to return to work after her maternity leave ended in September 2020. The respondent’s evidence was that the complainant resigned from her employment having taken up another job teaching music three days per week. While the complainant said she needed three days off to attend to her other job, she said she could work weekends if needed. The complainant stated in evidence that she told the employer if she didn’t get the three days off, she would leave.  It transpired that the complainant working weekends did not suit other staff who were rostered to work at weekends and according to the respondent this situation caused tension between the complainant and other staff. The complainant stated that she was also aware that the business was due to close, and a new owner was due take over in April 2020 although this did not happen due to the restrictions imposed as a result of the covid 19 pandemic.

In relation to the last interaction between the complainant and the respondent principal, the complainant stated that she told the respondent she could not continue to work at that time as she was being bullied and that she was leaving to go on maternity leave early as a result. The respondent’s evidence was that he understood the complainant to be leaving the employment permanently as a result of the new job teaching music and on the basis of the difficulty around rearranging the complainants shifts to facilitate the three days off during the week and the unsuitability of that arrangement to the business needs and to others. The respondent’s evidence was that as far as he was concerned, the complainant was clear that she was leaving permanently and that he gave her €300 out of his own pocket as a good will gesture and received a thank you card afterwards.

By the 1st April 2020, the complainant was no longer teaching music as this position had ended on 13th March 2020 due to the covid 19 pandemic which was in the early stages in Ireland at that time. In respect of the music teaching job, the complainant had been paying emergency tax while employed as a music teacher.  It is also the case that the lease of the respondent premises was to be taken over in April 2020 but the business itself was closed due to the pandemic and the new owners did not take over until October 2021.

There was also a number of what’s app messages exchanged between the complainant and the respondent from the 1st April 2020 onwards. The conversation contained in the messages, in my view, are not indicative of an employee who has been dismissed by her employer for discriminatory reasons while on maternity leave. In my mind the messages indicate that the complainant’s employment had ceased permanently, and she had sought clarification of this from the respondent, possibly for taxation purposes. The complainant seeks her P45 in the messages, seeks clarification that she is ceased permanently and tells the respondent that its “ok”. I find that this is consistent with the respondent’s evidence that he was responding to the complainant’s requests that she had been ceased permanently in line with her wishes following her resignation in early March 2020.

In relation to the evidence of the complainant and the respondent principal, I am satisfied that both witnesses gave honest and credible evidence in relation to their own individual understanding as to the situation pertaining at the time and having investigated the complaint as submitted, it is my role to decide if a dismissal occurred and if it did, was it for discriminatory reasons as a result of the complainant’s absence on maternity leave.

In conclusion, having considered the submissions and evidence of the parties, as well as the additional documentation submitted, I find on balance that the complainant resigned from her employment following the difficulties around the shift changes to facilitate the music teaching job. As the claimant was not dismissed, I find her claim for discriminatory dismissal on the basis of gender and family status is not well founded. The issue of the complainant describing herself as a “foreigner” in her complaint narrative and the perceived discriminatory treatment relating to that issue was not pursued at the adjudication hearing.

In all of the circumstances of the complaint, I find on the balance of probabilities that the complainant resigned from her employment and was not dismissed. Accordingly, I find that the complaints are not well founded.

The complainant is seeking an extension of time in relation to the complaint submitted to the WRC on 27th October 2020, under the Minimum Notice and Terms of Employment Act, 1973. The basis for the extension of time is due to the alleged failure of the respondent to notify the complainant in relation to her dismissal and in circumstances where the complainant received ambiguous answers to her queries in relation to her employment status in the months that followed the commencement of her maternity leave. Counsel for the complainant contends that the fact that the complainant found out by chance that her employment had been ceased by the respondent is sufficient to satisfy the reasonable cause test and to justify a short extension of time.

The respondent addressed the timing of the complaints in its initial submissions and in supplemental submissions received by the WRC on 28th March 2022. Nothwithstanding it’s contention that the complainant resigned from her employment, the respondent submits that the complaints, received on 27th October 2020 are outside of the statutory timeframe for referrals to the WRC. The respondent further contends that the complainant has not met the appropriate tests in showing that reasonable cause existed in relation to the delay in submitting the complaints and that no extension of time should be granted.

I have considered the referral of the complaints, which were received by the WRC on 27th October 2020. In my view the complainant has not established that there was reasonable cause for the delay in submitting her complaints. She had submitted other correspondence to the WRC in August 2020 and at that time, her complaints in relation to notice entitlements would have been submitted within the statutory 6 months’ timeframe. As there were no justifiable reason put forward that would both explain and excuse the delay in line with Labour Court Determination No: Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338, I do not grant the extension of time sought. Accordingly, I find that the complaint is out of time.

The complainant contends that she was not permitted to return to work following a period of maternity leave which commenced in March 2020 and would have been due to end in September 2020.

The respondent contends, as outlined in CA-00039322-001 that the complainant resigned prior to the commencement of maternity leave and in those circumstances her complaint should be dismissed.

I have found in CA-00039322-001 that the complainant resigned from her employment in early March 2020 and was not dismissed as claimed. On that basis the complaint does not succeed.

Having considered the submissions of the parties in relation to the complaints, I find as follows:

CA-00039322-003 - Minimum Notice and Terms of Employment Act, 1973.

The complaint is out of time and is therefore statute barred.

CA-00039322-005 - Maternity Protection Act, 1994

The complaint is not well founded on the basis that in complaint application CA-00039322-001, I have found that the complainant resigned from her employment.

Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV – Centrum) [1990] ECR 1-3941

O’Brien v Persian Properties trading as O’Callaghan Hotels [2012] ELR 211,

C-232/09 Danosa v LKB Lizings SIA [20011 CMLR 45,

Trailer Care Holdings Ltd v Deborah Healy (EDA 128)

Lee t/a Peking House v Fox [EED036]

A HR Manager v An Aviation recruitment and staff support agency. ADJ-00022909

Parcourt Ltd T/A Café Vienna and a Worker Labour Court Determination No: EED0211

Cementation Skanska (Formerly Kvaerner Cementation) Limited and Tom Carroll Labour Court Determination No. DWT0338

QFF Distribution Limited v Keith O’Reilly Labour Court Determination No. PDD171

Hydraulic Hose Services Limited T/A Pirtek and Christian Balasa Labour Court Determination No: PWD2026

Discrimination, Discriminatory dismissal, notice entitlements, return to work post maternity leave.