ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030604
Parties:
| Complainant | Respondent |
Parties | Elena Balan | Corajio Unlimited Company T/A Mr. Price |
Representatives | Niamh O’Brien BL Olive Moore Solr., Tallans Solicitors | Pat Collier Collier Broderick HR Support |
Complaint(s):
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-00040898-001 | 10/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040898-002 | 10/11/2020 |
Date of Adjudication Hearing: 24/02/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I affirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 10th of November 2020) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her Gender (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…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) …..(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
- (a) That one is a woman and the other is a man (the “gender ground”)…
Also relevant is the assertion in 6(2A) which specifically deals with pregnancy related issues and which states:
“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.”
It is accepted that the entire period of pregnancy and maternity leave constitutes a special protected period. Article 10 of the EU Pregnancy Directive prohibits the dismissal of workers who are on maternity leave save for in exceptional circumstances and require an employer to cite “duly substantiated grounds in writing”. It is not sufficient for the employer to simply aver that the dismissal during pregnancy was for other, unrelated, reasons.In the case of Assico Assembly Ltd -v- Corcoran EED 033/2003 the Labour court found that:
“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy, and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practise, should be set out in writing.”
In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or of the victimisation. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House -v- Fox EED036 :
“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.
Generally speaking, in employment equality issues the complainant has little or no direct evidence of discrimination. EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises such difficulty. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –
“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
This has been transposed into Irish law by section 85A of the Employment Equality Acts:
“…in any proceedings facts are established by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
The law provides robust protection to women who have been dismissed for any reason rating to pregnancy birth and maternity leave, in accordance with it’s obligations under EU Law.
In addition to the above and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
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:
This a claim seeking redress for discriminatory treatment in the workplace. It is brought on foot of a Workplace relations complaint form dated 10th of November 2020. 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. In response to the 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) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and 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 to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was fully represented and had the benefit of an interpreter provided by the Workplace Relations Commission. The Complainant made an Affirmation as appropriate. I was provided with a comprehensive submission dated the 18th day of February 2022. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence – such as emails etc., in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent/by the Respondent’s Representative. The Complainant alleges that she was discriminated against at a time that she was on maternity leave. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent provided me with a written submissions dated 16th of February 2022. I have additionally heard from a witness for the Respondent. All evidence was heard following an Affirmation/Oath. The Respondent was cross examined by the Complainant rep. The Respondent rejects that there has been Discrimination and does not accept any other contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant gave evidence on her own behalf. The undisputed facts include the fact that the Complainant commenced her employment with this large Retail outlet on the 8th of July 2019 and that she was a popular and hard-working member of staff. The Complainant was pregnant in 2020 and was due to go out on her maternity leave on the 30th of March 2020. The Statutory Maternity leave was due to end on the 26th of September 2020. As it happens, the Complainant went out a little early as she was having chronic back trouble and, in the circumstances, her G.P signed her off on maternity leave two weeks earlier than expected. The Complainant safely had her baby, and thereafter was at home taking care of her baby. At some point in this Maternity leave (and thought to be in and around the middle of July 2020), the Complainant went into the Respondent shop with her Husband and baby. She was there to do some shopping and it seems that while she was there, she ran into the store Manager CON who was out on the shop floor. By all accounts, they had a friendly chat about the baby and the Complainant said that she told her boss (CON) that she was still having difficulty with her back and that she might have to get her G.P. to certify her as not fit to return to work at the end of her Maternity leave in September. The Complainant says she suggested she might have to return on the basis of coming in for half days. The Complainant says that CON was very relaxed about this and suggested that she just contact the office as soon as she was ready to return. The Complainant asked if she might also use up whatever holiday time she was owed. CON suggested that she should have a chat with MH about this. MH was the newly appointed store Manager that the Complainant had known as she had been her Supervisor before the Complainant had gone out on Maternity Leave. In his evidence, CON stated that he understood that the Complainant was anxious about funds and looking for any holiday entitlement to which she might be entitled to date. The Complainant contacted MH by WhatsApp on the 5th of August and whilst the translation is a little unclear the general jist appears to be a question from the Complainant wondering what the correct procedure is for taking any holiday leave she might have. Should she fill out a form or something or just write an email? On the 6th of August MH indicates she has not had a chance to look at that. On the 7th of August a longer message from MH explains that the Complainant is entitled to three weeks leave but payment of same depends on whether she is returning to the workplace or not. The parties communicate again on the 8th of August and the Complainant says she might go back and ask CON about this. The Complainant also says she might go to her G.P. and see about sick leave. The messages end with the Complainant noting that she will write that she is not quitting when she has gone to her Doctor. It is noted that this conversation took place in early August and that the Complainant still had six or seven weeks to run on her maternity leave. It seems clear to me, and I accept it as a matter of fact, that the Complainant is exploring her options to see what might be open to her in terms of not returning immediately to the workplace. At the end of August, the Complainant tried to once again communicate with MH but was advised MH was away and she would have to go into the store if there was a work related query. Then on the 3rd of September 2020 MH called the Complainant on the telephone. The Complainant gave evidence of the conversation had between them. She said MH advised her she would be getting her final payslip which would be self-explanatory in terms in that it would record what was owed to the Complainant. She was told everything she was owed would come to her. The Complainant asked why she was getting this now and was told because her name was no longer on the data base and her employment was terminated. The Complainant was shocked at this and asked why she had been dismissed. MH suggested that she had quit her job, but MH also admitted that she did not know the answer and that it had not been up to her. The Complainant described herself to be “frozen” with the shock of this conversation. She didn’t know what to say to MH or what to do. The conversation ended with the Complainant in a state of shock. The Complainant’s immediate reaction thereafter was to contact CON by email – sent on the 3rd of September at 3.12pm. The Complainant queries why the database would say that she had quit as she never said she would quit. The Complainant confirms that she was unsure about her exact return date if she was obliged to take sick leave but she never said she would quit. At this point, the complainant also checked her details on the Revenue site and eas surprised to note that her employment with the Respondent had been terminated as far back as the 31st of July 2020. This was done without any notification given to the Complainant and no notice period paid for. AS it happens, MH comes back to the Complainant. She explains in an email on the 4th of September 2020 that as she is now the Manager of the shop and it is better to communicate with her. In this email MH also states: “…If you want to work here after you feel better you can come back here, I will be happy to have you back here any time…” It is noted again that the Complainant is still officially out on Maternity Leave and has therefore been dismissed in the course of a recognised protected leave. In response to this last email the Complainant reverts asking: “..And please can you send me that letter or Notice where I wrote that I am quitting?” The Complainant writes again on the 7th and 9th of September seeking an explanation for her dismissal in the absence of any warning letter. She confirms that she had had a conversation about the possibility of having to take sick leave at the end of her maternity leave, or of coming back on a part time basis but this does not explain why she finds herself inexplicably fired from her job. The Respondent witness CON came back to her on the 14th of September and explained: “As far as I understood leaving our conversation in the store, you wanted to leave and receive the holiday hours owed to you. We would be more than happy if you could stay with us here and return when you are able to do so” I am inclined to accept that there was some sort of misunderstanding as to what the Complainant was or was not asking for when she had a seemingly casual conversation with her Store Manager in the July of 2020. The conversation seemed to range back and forth. CON confirmed in evidence that he thought she wanted to resign, and he even asked her to write to him confirming that that was her intention, though he conceded he got no such letter. I do not, I have to say, think any blame lies with the Complainant. CON decided of his own volition to terminate this employment with a view, he says, to ensuring the Complainant get whatever holiday pay was then due to her. He said in evidence he had jumped the gun as he had not received a letter from her confirming a resignation. However, this seemingly sympathetic explanation ignores the full breadth of the conversation had between himself and the Complainant in July. She had, after all, also asked about part time work and the possibility of obtaining ongoing certified sick leave. At the very least, I would have thought that a Manager would double check that an Employee – particularly one out on protected Maternity Leave- was sure she wanted to quit based on a brief conversation had in the course of an unscheduled meeting at the back of the tills. In fact, there is a legal obligation on an Employer to state in writing why an employee out on Maternity Leave is being terminated. What’s more surprising in this situation is the fact that even when the mistake had clearly been identified, the Respondent parties – both CON and MH – double down on the mistake and fail to rectify the error by immediately and apologetically restoring her position on the database with retrospective effect. Had they done this, they would have ensured no detriment to the Complainant in terms of service, her seniority, and whatever other benefits might accrue to her in the workplace based on tenure longevity. It might also have gone some way towards ameliorating the upset she experienced during a period of protected leave. I accept that both parties give an assurance that she will be welcome back, but that is not the same as putting her back in the position she would have been in had the termination not occurred. It is surprising, given the size and number of employees of the Respondent company, that there was no sense of HR guidance while these matters were unfolding. On balance I accept the Complainant’s assertion that she has been discriminated against by the Respondent. The discriminatory act was the dismissal of the Complainant while she was on Maternity leave at a time when she had simply indicated that she may not be in a position to immediately return to the workplace at the end of her maternity leave by reason of ongoing back pain issues arising from her pregnancy and continuing after the recent birth of her child. It is further noted that the Employer failed to comply with Article 10 of the pregnancy directive to provide a “duly substantiated grounds in writing” to the complainant which would presumably have brought the otherwise veiled termination to light well before it did. The Complainant gave evidence as to the effect that this dismissal, which happened two months before the end of her Maternity period, had had on her. She couldn’t sleep, her breast feeding was disrupted, and she had low grade anxiety thinking she had done something wrong. The Complainant was not paid for the notice period she was entitled to at the time of the purported termination of her employment. |
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 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00040898-001 – The Complainant was discriminated against on the grounds of her Gender and specifically in the fact of being dismissed whilst on Maternity Leave. This impacted negatively on the Complainant. I order compensation for the effects of discrimination in the sum of €20,000.00 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00040898-002 - The claim here is well-founded and the Complainant should have received pay in lieu of Notice. I direct that the Respondent should pay to the Complainant the sum of €780.00. |
Dated: 24th June 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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