Complainant

Respondent

Parties

Dakota  McMenamin

Niall Jackson

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049934-001

27/04/2022

The Complainant was employed as a waitress from 16th March 2022 until 24th April 2022.

The Complainant was working four days per week for the Respondent’s new restaurant. She gave evidence that she informed the owner of her pregnancy on 8th April 2022 when she was three months pregnant, so he had notice of her maternity-leave. After the Complainant informed the owner of her pregnancy her hours were reduced from four days a week to one day a week. Then she was told she had no job. She was not given a reason, warnings or notice. The Complainant accepts she made some mistakes during training and there were teething issues. The other waitress also made mistakes on orders. The Complainant said the week before she was fired the owner was trialling a new employee. She was paid €10.50 per hour.

The Complainant is young and was upset when she was fired. She found it hard to get back to work for a few weeks. She found employment with a local hotel in May 2022 earning €300 per week.

The Respondent had opened a new restaurant. When it first opened, the owner was not sure how many staff were required. Initially he employed three chefs and two waitresses. He said there were issues with the Complainant from the first day she was employed. She was given four days training before the restaurant opened. The owner gave evidence that himself and the Head Chef spoke to the Complainant as she was getting the telephone orders wrong, leading to complaints. This was damaging the business. She was not checking for takeout when customers arrived to the restaurant.

He spoke to the Complainant about this while she was on probation and gave her training. There were constant mistakes, it was not teething issues. She did not charge for toppings of products and it happened repeatedly. He did not want to let the Complainant go as she is a young person, but he had no choice. The Complainant’s hours were cut before she told him she was pregnant, as she was making mistakes. The Respondent let the Complainant go after training as she was not capable of the role. The position was not filled. The owner requires only one person on the till. The business was not doing well and moved to reduced hours Thursday to Sunday. The Complainant was paid €11 per hour in excess of minimum wage.

I have heard and considered carefully the written and oral evidence and submissions of the parties.

S6 (2) (f) of the Unfair Dismissals Acts 1977 provides an unfair dismissal occurs if an employee is dismissed for matters connected with pregnancy, ante-natal classes, giving birth or breastfeeding or matters concerned therewith or

(g) the exercise or proposed exercise by the employee of a right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with S15A (inserted by S8 of the Maternity Protection (Amendment) Act 2004 or to time off from work or a reduction of working hours for breastfeeding in accordance with S15B (inserted by S9 of the Maternity Protection (Amendment) Act 2004) of the first mentioned Act

The Complainant was dismissed by the Respondent following a period of five weeks employment while on her probation period. She informed the owner she was pregnant on 8th April 2022. She alleges her hours were reduced and she was dismissed due to her pregnancy. However, the Respondent produced the Complainant’s payslips which show the Complainant’s hours were significantly reduced after three weeks employment, prior to her informing the owner of her pregnancy on 8th April 2022. The Respondent gave evidence of performance issues with the Complainant. At the time, the business was not performing, and the trading hours were reduced. The owner said the Complainant was not replaced following her dismissal.

Having considered the evidence of the parties and their submissions, I am not convinced the reason for the Complainant’s dismissal is related to her pregnancy. The Unfair Dismissals Act 1977 at S2 (1) (a) provides the Act shall not apply to an employee who is dismissed who at the date of her dismissal had less than one year’s continuous service with the employer. The Complainant had less than one year’s service as she was employed from 16th March 2022 until 24th April 2022.

 In the circumstances, I find the complaint is not well founded.

I find the complaint is not well founded.

Dismissal due to pregnancy, probation period