FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : AVEO FOODS LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - MS PAULINA KNAPCZYK (REPRESENTED BY DUBLIN SOUTH CITIZENS INFORMATION SERVICE CLG) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00026176, CA-00033402-001 This is an appeal by Aveo Foods Limited of decision ADJ-00026176 of an Adjudication Officer in a claim by Ms Paulina Knapczyk that her employer discriminated against her when they dismissed her during her pregnancy. The Complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act). The Adjudication Officer found that the complaint was well-founded and awarded Ms Knapczyk compensation in the amount of €10,000 and recommended that the Respondent re-write a section of its employee handbook. In line with the normal practise of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Knapczyk is referred to as the Complainant and Aveo Foods Limited is referred to as the Respondent. Summary of Complainant’s case and evidence. The Complainant was employed by the Respondent as a packaging assistant from the 7thFebruary 2019 until her dismissal on the 10thJuly 2019. Her initial rate of pay was €10 per hour which was increased to €11 per hour in May 2019 when she understood that she was appointed as a team leader. The Complainants main duties were packing prepared meals into plastic trays. The Complainant was provided with a written statement of her terms and conditions of employment and her employment was subject to successful completion of a six-month probationary period. The contract provided for the period to be extended to cover any sick leave absences and in this case the probationary period was due to expire on 23rdAugust 2019. In her evidence to the Court the Complainant confirmed that her baby was born on the 5thJanuary 2020 and she handed in a copy of the birth certificate. The Complaint stated that she never had any issues in work and that in fact she helped other workers on the line. At one point an issue arose in respect of matching batch codes and dates and following that she was nominated to be team leader and to make sure that the correct food was coming from the fridges/ freezers. Her name was on the board as a team leader. During the early months of her pregnancy, she was lightheaded, nauseous and had to go to the bathroom more frequently. Every time she had to leave the line to go to the bathroom, she had to tell her supervisor Ms Jelinkova. Prior to her pregnancy she sat with Ms Jelinkova at the smoking table and for her lunch, but she stopped doing that when she was pregnant, and she stopped smoking. It was the Complainants evidence that one day in early June as she was heading to the canteen to have her lunch her supervisor Ms Jelinkova approached her and asked her if she was feeling ok, then asked her if she was pregnant. The Complainant stated that she responded yes to the question and that the Supervisor turned and walked away. It was the Complainant’s evidence that everyone on her line (three or four people) knew she was pregnant including her supervisor and that they chatted about it. The Complainant confirmed that she was absent on certified sick leave from the 21stto 27thJune 2019. On the 10thJuly 2019 she was working on the line when a manager approached her and told her she had to go to the office. She was not told what it was about. When she went into the office Ms Mulholland Office Manager was there and she told her that her probation was unsuccessful and that she had to finish that day. Ms Mulholland did not say why her probation was not successful but stated that it would be set out in a letter that she would receive. The Complainant confirmed that at the meeting she was not told about or shown the note from Ms Boyd Technician, dated 9thJuly 2019. The Complainant stated that the meeting lasted about three minutes. At the end of the meeting, she told Ms Mulholland that she was pregnant. The Complainant stated that when she went home, she sent Ms Mulholland an email as she was in shock, asking why she was sacked and advising that Ms Jelinkova and the other people who worked with her on the line all knew she was pregnant. Ms Mulholland replied on the same day stating that more detailed reasons for her dismissal would be sent to her shortly, but they never were. The Complainant stated that she did not receive the letter of dismissal that they sent out as it was sent to an old address. However, when she did see a copy of it did not state why she was dismissed. In response to a question from the Respondent’s representative under cross examination, the Complainant stated that she was promoted to team leader in mid- May 2019 and received the increase in pay towards the end of May. It was put to the Complainant that Ms Mulholland evidence will be that there is no position of team leader in the plant. The Complainant stated that she nominated to be team leader and that team leader was on the board after her name. it was also put to her that all new entrant staff received a pay uplift from €10 to €11 at the same time as she did, and that the pay lift arose from the decision of the CEO to increase the starting rate of pay. The Complainant stated that she was not aware of other people’s rates of pay. In respect of taking smoking breaks with Ms Jelinkova it was put to the Complainant that her evidence will be that they only went on smoke breaks together sometimes. The Complainant stated that prior to her pregnancy that they went on smoke breaks together every day. It was put to the Complainant that Ms Jelinkova will state that she never discussed the pregnancy with the Complainant. The Complainant stated that Ms Jelinkova noticed that she was not feeling well and asked her if she was pregnant and that she stated that she was. The Complainant accepted in her evidence that she had not formally told the Respondent as she was waiting until she was twelve weeks pregnant to formally tell them. It was put to the Complainant that the Respondent’s handbook had clear procedures to be followed if a person was pregnant which included telling the employer as soon as practical so they could carry out a risk assessment. The Complainant stated that she had received the handbook but could not remember if she saw the piece about telling the employer when she was pregnant. The Complainant accepted that her doctor’s certificate covering her absence from 21stto 27thJune 2019 did not mention she was pregnant as she had asked the Doctor not to state that. The Complainant stated that she had heard in previous employments that an employer could dismiss you if you were pregnant up to twelve weeks but not after twelve weeks and that was why she had not formally told the Respondent. The Complainant re-affirmed her earlier evidence that Ms Jelinkova and all her co-workers on the line knew she was pregnant. The Complainant stated that there were three production lines with three to four people on each and most of the time but not always she would be on the line with the same people. The representative for the Complainant submitted that the Complainant had established that she was pregnant and that she was dismissed and had therefore made out a prima facie case. The burden of proof shifts to the Respondent to show that the dismissal was not related to her pregnancy, and they had failed to do that. The Complainant’s representative submitted that the Respondent as set out in the case ofBirmingham v Colour’s Hair TeamDEC-E-2008-040 had to demonstrate that there were exceptional circumstances not associated with the employee’s pregnancy for the dismissal. InDymnicka v Kylemore Foods LtdUD/1003/2007 the tribunal found that the respondent had failed to satisfy the Tribunal that the pregnancy was not a relevant factor it was submitted that in the case to hand they had also failed to establish that the pregnancy was not a relevant factor in coming to the decision to dismiss. It was submitted on behalf of the Complainant that it was not in dispute that the Complainant had a conversation with Ms Jelinkova or that her supervisor Ms Jelinkova had asked her if she was pregnant. It was not in dispute that there was no formal record of the Complainant ever being spoken to about any incidences in the workplace. Nor is it disputed that the Complainant was dismissed without any warning, or any procedures being followed. The Complainant at the time of dismissal was given no reason other than that her probation had not been satisfactory. This supports the Complainant’s submission that there was an underlying reason for the dismissal which in this case was her pregnancy. Summary of Respondent’s case and evidence. The Representative for the Respondent informed the Court that they were putting the Complainant on proof of her pregnancy. The Complainant at the hearing produced a birth certificate and the Respondent indicated that they were prepared to accept that as proof of pregnancy at the relevant time. The Complainant was employed subject to successfully completing her probationary period of six months. During the Complainant’s period of employment, she had been spoken to on a number of occasions in relation to policies and procedures especially in relation to hygiene related procedures. It was accepted that there was no documentary record of those conversations. The latest issue arose on the 9thJuly 2019 when the technical manager Ms Boyd had to speak to the Complainant about drinking water from the water cooler out of an empty product tray. On the 10thJuly the Complainant was called to the office of Ms Mulholland who advised her that she had not passed her probationary period, that her employment was being terminated at that time and that she would receive one weeks pay in lieu of notice. It was only when the meeting was closed that the Complainant informed Ms Mulholland that she was pregnant. The first person to give evidence on behalf of the Respondent was Ms Nada Jelinkova who was the Complainants supervisor. It was Ms Jelinkova’s evidence that there is no team leader grade. The grades are production assistant and production supervisor and packaging assistant and packaging supervisor. There is no in between grade. In terms of the tasks outlined by the Complainant as Team leader tasks the checking of expiry dates is rotated amongst staff on a daily basis. Ms Jelinkova stated that sometimes she went on smoke breaks with the Complainant but not all the time and that there were usually four or five people in the designated smoking area when they were there. It was her evidence that sometimes she sat in her car and smoked. Ms Jelinkova stated that she did not notice that the Complainant had stopped smoking or that she left the line more frequently to go to the bathroom. Ms Jelinkova’s evidence was that she did not remember the conversation that the Complainant stated occurred in June and that she does not remember asking her if she was pregnant. Nor did she hear conversation on the line about the Complainant’s pregnancy. It was Ms Jelinkova’s evidence that if she knew a worker on the line was pregnant that she would contact HR and let them know or she would advise the person to go to HR and let them know. Ms Jelinkova stated that she was not aware that the Complainant had received a pay rise and that she did not remember discussing same with the Complainant. She confirmed that if a Worker on the production line wanted to leave the line go to the bathroom, they had to tell her that they were leaving the production line. The Complainant’s representative under cross examination put it to Ms Jelinkova that in her evidence in chief to the Court she stated that she had not asked the Complainant if she was pregnant but in her sworn evidence to the Adjudication Officer, she had confirmed that she had asked the Complainant if she was pregnant. Ms Jelinkova stated that she was answering a different question earlier and that she did ask the Complainant in a joking manner sometime in March if she was pregnant and the Complainant’s answer was no. In response to a question as to why she asked that question, she stated it was because the Complainant was absent every Monday. Ms Jelinkova was shown the Complainant’s absence record and accepted that it did not show that she was absent every Monday in February March or April and could offer no explanation for why in March 2019 she thought she was, and it prompted her to ask her if she was pregnant. In respect of having a conversation in June she does recall telling the Complainant that she did not look well but does not remember any conversation about her being pregnant. The next witness for the Respondent was Ms Mulholland who is the Office Manager and Administration person. It was Ms Mulholland’s evidence that the Respondent does not have a HR department or HR person and that she looks after the administration side of the house. Ms Mulholland stated that on the 10thJuly 2019 she asked Ms Albertina Urbonaite to bring the Complainant to her office and to inform her it was about her probation. It was her evidence that she was directed by Mr Hyat Syed the CEO, to end the Complainants probationary period. Ms Mulholland said it was her understanding that the ending of the Complainants probation arose because there had been an incident on the 9thJuly 2019 whereby one of the technical staff had been doing a walk around and had spotted the Complainant drinking water out of a product container. The CEO Mr Hyat Syed and the technical person Ms Boyd had decided that this was a very serious breach of the hygiene rules, and that the Complainant’s probation should be ended immediately. It was her evidence that she was not party to the decision-making process but was informed of the decision and asked to relay it to the Complainant. Ms Mulholland confirmed that at the meeting on the 10thJuly 2019 she did not tell the Complainant the reason why she had failed her probation and her employment terminated. It was her evidence that it is the Respondent’s policy not to tell someone why their probation was being ended. Ms Mulholland accepted that this wasn’t set out in their written probation policy. When asked how she knew it was policy it was her evidence that she was told by her predecessor. Ms Mulholland confirmed that the Complainant along with a number of other members of staff received a pay rise in May 2019. The CEO had decided that all new starts should move from €10 an hour to €11. Ms Mulholland stated that she did not know the Complainant was pregnant until after she had told her that she was being dismissed. After the meeting she spoke to Ms Albertina Urbonaite and Ms Jelinkova both of whom said they did not know she was pregnant. Under cross examination Ms Mulholland accepted that she did not tell the Complainant at the meeting the reason why she was being dismissed. She could offer no explanation for why if it was the Respondent’s policy not to tell worker’s the reason their probation was unsuccessful, in her email of the 10thJuly 2019 to the Complainant she had stated I will forward detailed reasons shortly. It was put to Ms Mulholland that the note of the meeting of the 10 July 2019 reflected that she, on being told by the Complainant that she was pregnant, had responded that “obviously the company was not aware of same as it had only being brought to her attention at the end of the meeting”. Ms Mulholland was asked how she knew that the company were not aware that the Complainant was pregnant. Ms Mulholland clarified that when she was referring to the company, she was in fact only referring to the fact that she did not know. The representative for the Respondent submitted that the Respondent was not aware that the Complainant was pregnant and the Complainant in her own evidence had confirmed not only had she not formally told the Respondent that she was pregnant, but she had asked her doctor to omit same from a medical certificate issued towards the end of June 2019. Both the legislation and the directive require the Employer to be on notice of the pregnancy and in this instance, it is not disputed that the Complainant did not formally tell the Respondent that she was pregnant until the meeting of the 10thJuly with Ms Mulholland at which point the decision to dismiss had already been taken. Relying on the decision of the Court of Appeal inDonal O’ Donovan v Over-C Technology Limited[2021] IECA 37 the Respondent submitted that it was not obliged to follow any procedures in terms of bringing the Complainants employment to an end during the probationary period. The Complainant’s contract and probationary procedure provide for the probation to be terminated at any time at the absolute discretion of the Respondent. The Respondent submitted that the Complainant was treated fairly and paid one weeks’ notice. The fact that her supervisor jokingly asked her if she was pregnant in March does not equate to the Respondent knowing that she was pregnant. There is no evidence that she formally told the Respondent that she was pregnant, and she has therefore failed to establish a prima facia case. The probationary period is an ongoing assessment of her suitability for the role and in this instance the Respondent concluded that she was not suitable and terminated her probation on that basis. The applicable law Discrimination for the purposes of this Act.
Section 2(1) Maternity Protection Act 1994 defines pregnant employee as “an employee who is pregnant and who has informed her employer of her condition” Discussion and Determination At the commencement of the hearing the Respondent accepted that the Complainant was pregnant at the time of dismissal but disputed that she had informed the Respondent of her pregnancy as required by the Directive and set out in the Maternity Protection Act 1994 set out above. The Court accepts that on the balance of probabilities that Ms Mulholland did not know when she met the Complainant on the 10thJuly 2019 that she was pregnant, but as was clearly stated in her evidence she was not involved in the decision to dismiss she only relayed the decision that had been taken by the CEO Mr Syed and Ms Boyd. Neither Mr Syed nor Ms Boyd were available to give evidence to the Court on the basis that they had come to the decision to dismiss or whether or not they were aware at that time that the Complainant was pregnant. The Court finds that on the balance of probabilities that the Complainant’s supervisor did ask her the question about being pregnant in June 2019 and not March 2019. The Court makes this finding on the basis that Ms Jelenkova initially, under oath denied asking the question at all, then changed her evidence to confirm that she had asked the Complainant in a joking manner if she was pregnant. The reason she gave for asking the question in March 2019, did not tally with the documentary evidence before the Court, concerning the Complainant’s absences. The Complainants’ evidence was that in June Ms Jelenkova had commented that she did not look well and asked her if she was pregnant. Ms Jelenkova evidence was that she did comment on the Complainant not looking well in June but that she could not remember if she asked her at that time if she was pregnant. In respect of this particular fact the Court prefers the evidence of the Complainant that her supervisor in June asked her if she was pregnant and that she replied yes, she was. The Courts finds that the Complainant has established that she was pregnant, that her supervisor was aware that she was pregnant and that her pregnancy could be within the range of reasonable inferences that can be drawn from the facts which led to her dismissal. The Court finds that the Complainant has established a prima facia case of discrimination and therefore the burden of proof shifts to the Respondent to establish that her dismissal was for reasons unrelated to her pregnancy. Article 10.2 of Directive 92/85/EEC requires that if a woman is dismissed during her pregnancy the employer must cite duly substantiated grounds in writing for her dismissal. In the case to hand the Complainant was not told at her dismissal meeting or subsequently provided with grounds for her dismissal in writing. Having told the Respondent at that meeting that she was pregnant she did later that day in response to an email she sent receive an email from Ms Mulholland confirming she would be provided with detailed reasons for her dismissal. However, same never materialised. Taking the fact that the Court did not hear from the decision makers in relation to the decision to dismiss and that the Respondent did not provide duly substantiated reasons for the dismissal as required, the Court finds that the Respondent has failed to satisfy the Court that the Complainants pregnancy was not a relevant factor incoming to the decision to dismiss. The Court therefore finds that Complainant was dismissed by reason of her pregnancy. Determination For the reasons set out herein, the Court is satisfied that the Complainant was discriminatorily dismissed. The Respondent’s appeal cannot succeed and is dismissed. The Court is satisfied that the appropriate redress is an award of compensation. It is now well settled that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. Taking all of the above into consideration and all the circumstances of this case the Court determines that an award of compensation which is fair and equitable should be measured at €10,000 being the equivalent of 24 weeks salary. The Decision of the Adjudication Officer is varied accordingly The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
