Complainant

Respondent

Parties

Eman  Chennit

Vevay Childcare Ltd  t/a   Little People Academy Creche

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-00044456-001

02/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00047202-001

16/11/2021

The case concerns firstly, a complaint of Discrimination under the Employment Equality Act,1998 on the Gender Ground with associated Victimisation and Harassment complaints.

Secondly, it concerns a complaint of Constructive Dismissal under the Unfair Dismissals Act,1977.

The Complainant was employed since 27th May 2019 as a Childcare Practitioner by a Creche/early childhood facility. The employment ended on the 16th November 2021.

The rate of pay was €500 Gross for a 40-hour week.

The Complainant gave an Oral Testimony supported by a former colleague/creche Manager; Ms DD. Extensive written materials were presented in support. Mr. Bajwa , Solicitor, was the chief spokesperson.

1:1        Employment Equality complaint / CA- 00044456-001

The Complainant alleged that she was discriminated against during her Pregnancy by the failure of the Respondent to properly address her Safety, Health and Welfare complaints regarding staffing levels, physical facilities, seating etc and work locations in the Creche.

Ms.H, the Regional Manager, inflexibly interpreted Staff/Child ratios (TUSLA) to prevent extra staff being assigned to help the heavily pregnant Complainant. Additional staff were simply used to fill gaps in the overall staff stations as opposed to assisting the Complainant.

In general, the Complainant maintained that she was subjected to a sustained campaign of Harassment and Bullying by the Regional Manager Ms.H.

On making a Grievance submission to the Owner, Ms P, on the 4th May 2021  she was subjected to follow up Victimisation by Ms.H.

In addition, Ms.H, did not address satisfactorily the unacceptable actions and verbal misinformation directed against the Complainant by two other staff Ms Cy and Ms Mo. Ms Cy had bullied her and been very aggressive and unhelpful. The Complainant lodged a Bullying complaint by e mail on the 30th May 2021 regarding the two other staff. It was never followed up and no disciplinary action was ever taken against Ms Cy or Ms Mo.

In general, Ms H, was always dismissive of any comments/suggestion from the Complainant and treated her with little or no respect. The Complainant was also subject to excessive supervision from Ms H regarding Class Planning -an area that the Complainant was very experienced in. The Complainant referred to numerous incidents of complaint with Ms H. TUSLA staff ratios were often ignored and the Complainant had been reduced to “Begging” for extra support. On many occasions the Creche was well outside of TUSLA ratios.

1:2       Unfair Constructive Dismissal Complaint. / CA- 00047202-001 and Complainant Oral Testimony.

The Complainant went on her Maternity leave on the 9th of June 2021. At the conclusion of her Maternity Leave she decided that she could not return to the Respondent creche. She resigned on the 16th November 2021 on the grounds that the contract of employment had been irretrievably breached by the Respondent by their failure to honour proper Health Safety and Welfare regulations and to allow a climate of Bullying & Harassment and victimisation from Ms.H, the Regional Manager. The Grievance submitted to the Owner, Ms P, on the 4th of May 2021 had not been properly handled and no investigation had taken place. An additional grievance/bullying complaint against two other staff members submitted on the 30th May 2021 had been ignored.

Taken in the round all these issues made a Constructive resignation the only reasonable course of faction for the Complainant.

1:3        Oral Testimony and written materials (3-page letter of the 16/07/2021) from                                                                                                    former Manager Ms. DD.

Ms DD, the former Creche Manager, was called by the Complainant.  To facilitate her work schedules, it was agreed to take her Testimony at the start of the Hearing.

Ms DD was a very experienced Creche Manager with over 20 years work in the Childcare sector. Ms DD was a very capable witness and in the Adjudication view, although called by the Complainant, gave a good independent overview.

In a most professional manner, she gave her recall of events. She had been informed in November that the Complainant was pregnant. The Complainant was, at this stage in the “Baby” Room. The Complainant was very anxious as her previous pregnancy had not gone well. Ms DD recalled that she and colleagues were very supportive and offered what help they could especially with lifting children into /out of cots etc. The Regional Manager, Ms.H, was new to the creche but was very supportive. A new chair/sofa was sourced for the Complainant and the first Risk Assessment was carried out by Ms.H. All seemed well.

However, the late Months of 2020 were very challenging for the Creche with a lot of staff illness and turn over. Covid 19 was then in full swing, and staff were very stretched to cover all rooms. At some times the Complainant’s close colleague had to be redeployed to fill emergency gaps arising from record levels of absenteeism. Recruitment of new staff was also very problematic at that time.

In the new year -2021 – the Complainant had a discussion with the Regional Manager, Ms H, regarding a move to the Pre School-Section. Ms H declined to agree to the move. Hot words were exchanged with Ms H but nothing exceptional. The Complainant had an issue with Ms H after this.  There was a lull in the New Year due to reduced child nos due to Covid, but the Complainant was regularly bringing up questions regarding the proper Ratio. She began keeping a personal diary of staff numbers each day.

Ms DD was asked by Ms H to keep a diary of incidents involving the Complainant. Ms DD declined to do so. On the Complainant’s return from Annual Leave in March it appeared that she expected to go to the Toddler Room. However, Ms DD and Ms H kept her in the Baby Room which was their understanding of an agreement made before the Holidays.

Ms H asked Ms DD to carry out a further Risk Assessment in April which she did. Medical certificates for the Complainant were produced which referred to stress from the work situation.

The Complainant told her she was going to lodge a grievance with the Owners regarding Ms H and the Stress she was causing the Complainant.  Ms DD recalled suggesting that the Complainant talk to Ms H directly to sort out issues between them rather than formally involve Ms P, the Owner.

In cross examination from Ms Egan for the Respondent, Ms DD, agreed that the Complainant was never left on her own save for very brief minutes. Staff had been assigned to help her, bearing in mind the very difficult staff availability issues. Ms DD felt that Complainant was unhappy about “her personal safety and that of her unborn child” both on the Covid and Pregnancy Grounds.

Ms Egan asked if Ms DD “felt that there were two of them in it i.e., Ms H and the Complainant”. Ms DD was very diplomatic in reply but did mention that other staff also had issues with the Complainant especially in the last few weeks of her work.

Ms DD always, personally felt, that the Complainant would not be coming back after her Maternity leave finished. The Complainant was not “happy” in the creche for a variety of reasons and she, Ms DD, was not surprised at the resignation.

1:4         Summary of Complainant’s overall position.

In conclusion, Mr Bajwa, summed up the Complainant’s case as one where her legitimate Safety, Health and Welfare had been ignored by the Regional Manager, Ms H. She had been bullied by other staff especially by Ms Cy and Ms Mo with the active complicity of Ms H. Her lengthy grievance of the 4th of May to Ms P had been ignored as had her second grievance regarding bullying by Ms Cy and Ms Mo.

When her Maternity leave was finished it was an obvious decision not to return to this place of employment where all her reasonable requests had been ignored and she had been subject to bullying, harassment and victimisation.

 The Respondent gave Oral testimony from Ms H, the Regional Manager and from Ms P, the overall Owner / Proprietor. Ms Egan of Peninsula was the chief spokesperson. A lengthy written submission was provided.

2:1         Employment Equality complaint / CA- 00044456-001 & Unfair Constructive Dismissal Complaint. / CA- 00047202-002

As both complaints were inextricably linked factual evidence on both was given together.

Reference was made to the Oral testimony of Ms MM, the former Manager.

The principal witness was Ms H, the Regional Manager. The Respondents maintained that they had at all times facilitated the Complainant in her pregnancy. Three risk assessments had been carried out at the beginning of each trimester. Heavy lifting of children into Cots had been delegated to other staff. The Baby Room was deemed the most suitable as very active toddlers who might collide with the Complaint were not there as they might be in other rooms.  A staff member, a “Floater” had been hired to provide cover for the Complainant, but it was admitted that staff absences, often unexpected, could require the “Floater” to help out in other areas as well. The Complainant had stated that she needed to have additional toilet breaks and had to avoid any “stress”. The Respondent had tried to ensure that other staff were always at close call to help her. The physical layout could be helpful as some sections were only separated by a very low partition. Ms DD, the Manager, was a Supernumerary and effectively a “Floater” as well and could help when needed.

The two additional staff in May/June (Ms Cy and Ms Mo) had helped out but their relationship with the Complainant had made things difficult. There was absolutely no bullying taking place by Ms Cy.

Staff shortages and the impact of Covid sick absences had made the situation very difficult.

Various meetings (15th February,) and extensive e mail correspondences were referred to with the Complainant. TUSLA staff/child ratios were discussed. The Regional Manager had to manage these as best she could in the midst of the Covid pandemic. The action of the Complainant in taking daily notes of the ratios was not helpful to a good relationship.

The work location of the Complainant became a source of contention. This was contested. Before her Annual leave it was suggested that she had agreed to move to the Toddler Room On her return from Leave she denied this, and a heated discussion/e mail exchange had followed.

At the end of the day the Creche had to be managed as an economic entity and in keeping with TUSLA regulations. The Complainant, pregnant or not, had to accept that. The Regional Manager, in close conjunction with Ms DD, had to decide where staff were deployed even if it might appear arbitrary to the Complainant.

Ms P, the Owner/MD gave Testimony regarding the grievance submitted on the 4th May. It was a lengthy document and she had to take time to considered it and seek advice. Ms P had informed the Complainant in May that an additional staff member had been recruited to exclusively help her in the last few weeks. The Complainant was unhappy with the speed of Ms P’s response and referred a complaint to the WRC on the 2nd June 2021.

Ms P stated that in her long career, in running Creches, she had experienced many staff pregnancies without incident. The Complainant was no different but took a very combative attitude probably due to stress and worry from the previous unhappy pregnancy.

At the middle of May other staff began requesting meetings with Ms H regarding the Complainant and her general attitude and work approach. A meeting with other staff took place on the 31st May 2021.  The Complainant took Annual leave on the 9th June and began her Maternity Leave thereafter.

She had sent a letter of Resignation on the 19th November 2021. The letter of resignation was not one that an employer might see as an opportunity to invite an employee back to work or to have discussions.

2:2         Respondent Summary and Legal Submissions.

Ms Egan for the Respondent pointed to well known cases, Mitchell v Southern Health Board [2001-ELR201] and Melbury Developments v Velpetters [EDA0917] to establish the pointthat an Equality case has to establish basic facts to found the case – a prima facie case is required.

The Complainant in this case had not established the basic level of initial prima facie proofs.

Likewise in the Unfair Dismissal “constructive” case the two basic tests of Unreasonable Behaviour and Breach of Employment Contracts had not been set out by the Complainant. The case was without proper legal foundation.

On these grounds the Equality complaint and the Unfair dismissal complaint had to fail.

3:1         Equality Complaint CA: - 00044456-001

The Law and Legal Precedent.

3:1        The Employment Equality Act, 1998 complaint

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an Employment Equality case, such as here, it is necessary to firstly establish certain Legal issues -these being

1.      In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to being a claim?

2.      Was she discriminated against?

3.      Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

4.      Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 if 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.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2      Was the Complainant covered by the Discrimination provisions of the Act?

In the complaint form she pointed to the Gender grounds as the basis for her complaints that she had been Victimised, Discriminated against and Harassed.

Clearly, she was of a female background.

Reviewing the evidence presented I think it fair to say that she satisfies this entry ground.

However, as has been pointed out many times in Labour Court and other Legal precedents being a member of a Group or Category is not sufficient grounds, alone, to justify a Discrimination claim.

An individual may be a Female but if the allegedly bad treatment they receive is the same as the population generally then being a Female, is by itself, not grounds to base a Discrimination claim using the Gender ground alone.

The normal burdens of proof, as in any case, have to apply.

3:3        Was she Discriminated against?

The Complainant argued that the processing of her, in her eyes, legitimate complaint of the 4th May 2021 was completely delayed and put off on the basis that she was a Female/Gender. the Discrimination took the form of failing to take proper cognisance of her Pregnancy and all the requirements that followed from this. The Victimisation and Harassment flowed from this alleged act of Discrimination.

Whether or not there were Discriminatory acts against a Pregnant Female must be discussed below in conjunction with the Burden of Proof question.

However, notwithstanding Legal precedents, all cases rest on their own evidence and factual background. These will be examined below with reference to the Burden of Proof arguments.

3:4        The Burden of Proof and Review of Evidence presented.

The Employment Equality Act Section 85(A) requires that the Respondent Employer effectively establish that the alleged Discrimination did not occur. Reviewing the evidence, I came to the view that the Burden of Proof rested with the Respondent employer.

3:4:1       Review of Evidence.

In this case significant Oral testimony was presented by the Complainant and by Ms H for the Respondent. The actual facts were reasonably similar but differed in interpretation between both witnesses -an Employee and a Manager.

From an Adjudication perspective the most telling 3rd party evidence was from Ms DD, the former Manager. She had been called by the Complainant but in fact gave very independent evidence.

She submitted a comprehensive letter on the 11th July 2021 giving her version of events which she supported by a detailed oral testimony. She was a very experienced Creche Manager and used to managing staff pregnancies in a very female workforce.

From her evidence it appeared that the staff and management were sympathetic and supportive to the Complainant, who, it was known, had experienced the loss of a pregnancy a few years before. Naturally she was very nervous, and Ms DD came across, to the Adjudicator, as having tired her best to be supportive. In this context the Covid epidemic was running in the background, and this posed many challenges to the Creche and Ms DD in terms of staff shortages often at very short notice. The Adjudicator found her evidence, as a very experienced and mature Crèche Manager, persuasive and portrayed a situation of help to the Complainant but in challenging times from Covid and staff shortages outside of everyone’s control.

Discrimination /Victimisation/Harassment implies an almost “Malign” intent on the alleged perpetrators. This was not evident in any way from Ms DD.

The evidence from Ms H, the Regional Manager, was also interesting. In her view she had overall control of the Creche with Ms DD reporting to her. The Creche in question was one of a number of units under her Regional Control. She had been hired by Ms P, the Owner, to help modernise the operating systems in keeping with ongoing TUSLA updates and requirements. Her evidence and corroborated by Ms DD was that she had been sympathetic to the Complainant. All Risk Assessments were carried out and staff had been reassigned to help the Complainant. It was clear that her personal manner with the Complainant was probably less personal (especially in terms of staff/child ratios and requirements) than that of Ms DD but there was no obvious evidence ( both oral and from extensive e mail exchanges and meeting records which were examined by the Adjudicator) of any malign intention to Discriminate in pursuit of any actual Discrimination or Victimisation/Harassment as alleged.

Ms P, the Owner, gave evidence. Again, she was very experienced with staff pregnancies in a predominantly female industry. She accepted that she had delayed with the Grievance letter of the 4th May 2021. She had quickly acknowledged it but referred to the need to seek professional advice.

The situation in May was then overtaken by the rows between Ms Cy, Ms On and the Complainant. These were never really resolved as the Complainant went on her Annual leave /Maternity leave at the start of June.

The Complainant’s Oral testimony and her supporting written materials detailed a history of unsatisfactory, from her point of view, meetings with Ms H regarding Ratios and work locations/staff allocations.  The reality was that Ms H was the overall Manager and had, of necessity a broader view of required staff/child ratios than the Complainant who was, it appeared, and probably understandably, exclusively focused on her own situation.

The issues with the two other staff in May while irritating to her, did not seem to the Adjudicator to satisfy the accepted standards of Harassment or Bullying – (repeated actions over a period of time etc)

A dispute over a large rug blocking a doorway/trip hazard and verbal exchanges between the staff concerned regarding leaving children unattended, falling asleep etc did not really meet the requirements to satisfy a Bullying / Discrimination complaint.

Ms H and Ms DD, from meeting records of staff meetings were on top of the situation as best as possible. An incident where a staff member went home in “a huff” following incidents with the complainant was discussed. Ms H and Ms DD appeared to have managed the situation as best they could.

3:4:2 Adjudication Summary /Equality Complaint

In summary the Adjudication view is that Ms DD, especially, and Ms H as overall Regional Manager were as reasonably sympathetic as possible to the Complainant and her Pregnancy. It was hard to see any real hard evidence of Discrimination as required by the Employment Equality Act,1998.

The prima facie, test of legal proof, as pointed out by Ms Egan was not met.

The Equality complaint fails.

3:5            Unfair / Constructive Dismissal complaint CA-00044456-002

3:5:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, as stated above, notwithstanding the Legal precedents, all cases rest on their own facts and evidence . These must be considered next. The Two Tests of Breach of Contract and Unreasonable Behaviour will be used to assist.

3:5:2         Constructive Dismissal – Test One – Breach of Contract.

A Breach of the Employment contract has to be very bad indeed, egregious is the word normally used in legal texts, to justify a resignation. Normally failure to pay wages or unreasonable demands on an employee completely outside of their job description would be referenced. In the evidence from this case this was not really advanced -instead there was an employee allegation that the implied and well-established contractual duty of care to a pregnant employee was not discharged properly.

The evidence particularly the oral testimony from both Ms DD and Ms H was that everything reasonable was done to assist the employee concerned, an example would have been the regular Risk Assessments at each Trimester period and the reallocation of staff as far as possible. It may not have been to the Complainants absolute liking but the Constructive Dismissal requirements of egregious or very bad breaches were not evident to the Adjudicator.

This test is not in the Complainant’s favour as the basis of a Constructive Dismissal complaint.

3:5:3         Constructive Dismissal – Test Two – Unreasonable Behaviours by either side.

Again, Legal precedent requires that any Unreasonable Behaviours be exactly that -Unreasonable. From listening to the Oral testimony and reading the written materials the chief basis of the Complainant’s case was the alleged behaviours / misbehaviours of Ms H, the Regional Manager.

On reflection the view of the Adjudicator was that while Ms H was definitely much more Managerial than the almost “maternal “approach of Ms DD nothing (having reviewed all evidence) of such a really bad nature too place as to warrant or justify a “reasonable person” to resign.

Legal precedent refers to the expression that “The Bar (standard of proof) is High” in a Constructive Dismissal case. In this case the Adjudication view has to be that the evidence did not support a view that the Behaviours of Ms H or Management generally was “so bad” as to support a Constructive Dismissal.

Accordingly, the Second Test does not support a complaint of Constructive Dismissal.

3:6        Overall Adjudication Summary – Equality and Constructive Dismissal

In plain English, both an Equality Discrimination case and a Constructive Dismissal case require high standards of proof. In this case while the Complainant was anxious and nervous during her pregnancy there was simply no strong evidence to support either complaint that she had been Discriminated against on the Gender Ground and had been Constructively Dismissed.

Accordingly, both complaints cannot be seen as successful.

The complaints fail.

Maternity Leave, Equality Discrimination, Gender, Constructive Dismissal.