Complainant

Respondent

Parties

Tara  Curran

Edward Slevin And Company T/A  Slevins Department Store

Representatives

Citizens Information Centre

 Self

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-00048687-001

17/02/2022

This case is concerned with an allegation that following her pregnancy and when she was known to be suffering from post-natal depression, the Respondent dismissed her by not offering her work when the workplace began to reopen after a period of closure related to Covid restrictions. The allegations of dismissal and discrimination are denied.

It is agreed that the Complainant commenced employment with the Respondent in September 2013 as a waitress. The date of termination was given as 23 August 2021. Gross pay was €144 per week.

The Respondent is the sole owner of the business which incorporates a shop and coffee shop or café.

Complainants evidence.

While in evidence regarding the sequence of events, it became clear that the Complainant was somewhat confused about the specific dates and related events. Following a break and with the assistance of her telephone records which she displayed to the hearing and provided copies where possible, the following was established as the best recollection of dates relating to the complaint.

October 2020-May 2021- Maternity Leave

12 July 2021 Cleaning of coffee shop prior to re-opening. The Complainant declined to work on this day, informing Ms L by text that she had post-natal depression and was unable to work.

2 August 2021 Telephone call to the Respondent informing him of her disability and explaining the situation. She was advised that she did not need to send in sick certs.

19 August 2021 Text from Ms L asking her to come into to see her the following week as she needed to talk to her.

23 August 2021 The Complainant went to the premises to meet Ms L in response to the text about a meeting. She said it was not a meeting as such, that Ms L leaned on the counter and in front of other staff told her she had bad news for her, that there were no hours for her. She went on to say that she knew there was a job going in SPAR-a separate business. The Complainant was shocked and was adamant that she was not told that there were no hours at that time, she was told that there were no hours available at all. Following that meeting she took it she was dismissed on grounds of her disability i.e., she was suffering from post-natal depression.

During her evidence she said over the summer she had looked for increased hours, referencing a vacancy in the shoe shop. Monday and Tuesday were her usual rostered days in the coffee shop.

Asked by the Chair of the role of Ms L, the Complainant regarded her as her manager. Ms L did the rosters, gave directions about such duties as cleaning on a day-to-day basis. She added that she saw the Respondent at the premises on the 23 August, leaving the coffee shop when she arrived, leading her to believe he was part of the decision that she was not to be offered hours.

Asked by the Chair what she had said to Ms L when informed there was no work for her, she replied nothing, she was shocked and just left.

Asked by the Chair if she had been signed off as fit for work at any stage, the Complainant replied no that she had not. She continues to be under medical supervision but she also needed to be at work for health reasons as part of her recovery programme. She had remained out of work until well into 2022.

Asked by the Chair why she had not engaged to any extent with the Respondent when he wrote to her explaining that her job was still there and telling her of the days available, she replied that all trust was broken by what had happened. As far as she was concerned, she was dismissed that day in the coffee shop.

Asked by the Chair how many employees doing the same duties there were in the coffee shop and which had longer and shorter service than she, the Complainant named each one and those who had shorter and longer service. She also named those employees who were at work on August 23rd indicating those who had shorter service than her.

Asked by the Chair if she had written terms of employment she replied no, adding there were no payslips.

On behalf of the Complainant, her representative explained the basis of the complaint of discrimination on grounds of disability. It was her doctors view that she needed to go to work. The Respondent was well aware of her mental health issues, she had spoken to him about it. The contention was that the Complainant was dismissed because she had post-natal depression. This occurred when she was refused hours and told she could obtain work elsewhere. She was treated differently than others who did not have a disability when she was not offered hours. There was no group meeting of staff re the return to work, this was an individual meeting with the Complainant which she was called in by the person she regarded as a manager because of the duties she undertook. It was reasonable of the Complainant to conclude that she was dismissed on the day of the meeting with Ms L and to conclude that the Respondent was aware of that meeting and that she would not be offered hours. Both Ms L and the Respondent were aware at that time that the Complainant was experiencing post-natal depression. Once the Complainant started to write to the Respondent on 2 September under advice from the Citizens Information Centre seeking reasons for the termination of her employment, he tried to backtrack. Prior to that correspondence he had not contacted the Complainant following the meeting with Ms L. On 7 September the Respondent replied to the Complainant denying a dismissal had occurred. He did not reply to the Complainants response.

It was submitted that the Respondent was vicariously liable for the actions of Ms L when she informed the Complainant there was no work for her. There had been a disclosure of a disability and that the Complainant was receiving treatment and on medication at that time. Ms Lynch was aware of the Complainants disability when informed of that fact in texts in July 2021 which she had acknowledged. Once the Complainant was informed by Ms L that there was no work available, all trust had broken down.

The Respondent provided a written timeline of events from 6 September summarised as follows. He had received short notice of the hearing as the notice was sent to his representative at the time-who was no longer in that capacity.

6 September received a letter from the Complainant referring to employment being terminated. He immediately spoke to Ms L to ask what had happened and then he rang the Complainant. When he spoke to the Complainant that morning, he asked her to come to the shop to sort things out-that there had been some sort of misunderstanding. She agreed to come in the following day.

7 September, the Complainant did not attend at the shop. He rang the Complainant that morning but she did not respond. He sent a text detailing her hours and days saying these were as discussed, the previous day.

8 September When the Complainant did not reply to his calls and text, he wrote to her. He delivered the letter to her house that evening.

13 September 2022 he received a letter from the Complainant which he said concluded with a threat to issue proceedings to the WRC.

He then took advice from his solicitor who concluded that the Complainant was looking for money to drop the case. His advice was to agree to mediation at the WRC which he did. He had made himself available for all dates offered by the WRC but the mediation did not go ahead. Mediation was cancelled on five separate occasions some of which he had arranged to attend by cancelling holidays and important meetings.

He added that the Complainant owed the business €441 since June 2021 which had not been paid back.

In his evidence, Mr Slevin was emphatic that there was no dismissal. The coffee shop was reopening and was very quiet and they did not know how much business there would be. There was some sort of mis communication between Ms L on the day and as soon as he became aware of it, he tried to contact the Complainant and he wrote to her saying there was work for her and she was not dismissed. He provided telephone records of his efforts to contact the Complainant about the situation. On 7 September he sent a text message confirming that she was down to work on the Monday and Tuesday of the following week. A dismissal would be a massive thing in the employment and nobody could make such a decision except him. Why did the Complainant not come to him directly about the issue after the meeting which, at the hearing and based on the text messages presented at the hearing, he accepted was arranged by Ms L. He denied being in the coffee shop on the day of the meeting convened by Ms L or being aware of what she was going to say to the Complainant.  Ms L has left the employment, but she was never a manager. He said she was paid the same rate of pay as the others in the coffee shop and the reason she set the rosters was that she was the only full-time employee. She was also responsible for ordering the foodstuffs.

The business had supported many people over the years including those with mental health issues.

In response to the Complainant representative, he questioned his liability for the actions of another employee.

In response to the Chair, he stated that he was present in the shop and involved in managing the business himself every day. He also stated that there are written terms of employment for each employee and that payslips are provided with wages each week.

In complaints under the Employment Equality Act (EEA), it is for the Complainant to establish facts which would lead to a presumption of discrimination unless the Respondent can prove to the contrary.

Burden of proof.

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.

The facts which the Complainant has established are as follow:

That she informed Ms L in July that she was unavailable for cleaning duties as she had PND.

That she informed the Respondent some two weeks later of her medical condition. When contacted by her, the Respondent did not dispute that she had a medical condition and did not seek any medical certification. Effectively taking her word that she had a medical condition which prevented her from working in July. The Respondent and Ms L separately acknowledged and accepted the Complainants disability.

That while at the same time indicating in July that she was not fit for work, the Complainant was seeking additional hours of work in the employment sometime in July/August. It was therefore known that she was intending to return to work.

That the Complainant was sent for by Ms L for an unspecified reason.

That, whatever the precise words used by Ms L when the Complainant went to meet her, on the balance of probabilities the conclusion is that the Complainant was not offered hours of work that day or, crucially, for any time in the near future.

That other employees were at work and rostered for work by Ms L while the Complainant was not rostered for work. Some of those employees had shorter service than the Complainant.

That there was a reference by Ms L to employment in another place, which itself suggests no prospect of an immediate return to work was made available to the Complainant.

It is self-evident therefore that on the basis of the facts established by the Complainant and once it is established that the Respondent accepted the Complainant had a disability, that the Complainant was treated less favourably than other employees who did not have a disability or did not have the same disability when it came to the distribution of available hours when the coffee shop was reopening.

The Complainant has established facts which reach the burden of proof threshold implicit in section 85A of the EEA.

For his part, the Respondent is in a fairly hopeless situation. To say that he was lax about paperwork concerning an employee’s illness by way of certification, or her fitness for work or his oversight of the return-to-work arrangements is to be generous. On the one hand he asserts that he alone was responsible for hiring and firing; that Ms L was not a manager; that he was directly involved in the day to day running of the business, yet he asks that it be accepted that he had no knowledge of the hours being offered or not offered to the Complainant by Ms L -also protesting at the hearing that he could not be vicariously liable for the actions of Ms L. That the Complainant on her own evidence was seeking additional hours is accepted, but that fact does not accept why she was called in to be told that there was bad news, there were no hours for her at that stage, at least or why she should seek work elsewhere. The Respondent has failed to establish facts which could undermine those facts provided by the Complainant in her case to such an extent, that a reasoned conclusion would be that the Complainants disability was in some measure a feature of the reason why she was not offered hours in August prior to or at the meeting with Ms L and why she was treated less favourably than others who were not protected from discrimination on that same ground.

The Complainant may not have been consciously dismissed by the Respondent or this may not have been the intention, but she was deprived of employment and income through discrimination based on her disability. In awarding compensation, I am taking into account the failure of the Complainant to bring her concerns to the Respondent by way of a grievance or even a telephone call to establish the situation. This is important where a discriminatory dismissal was claimed and where the Complainant had known that she needed to contact Mr Slevin regarding her illness in July when she did not make herself available for the clean-up work on grounds of illness. It also takes account of efforts made by the Respondent to resolve the situation after he received correspondence from the Complainant which read as genuine on his part at the time and in his evidence. The Complainant representative seems to see some grievous black mark in the actions of Mr Slevin in trying to resolve the matter once it was brought to his attention in writing, but any reasonable person would consider that he had a responsibility to try to resolve the situation noting that  it was the Complainant who would not engage with his efforts to do so and his offer of a return to her previous hours and days of work without further delay.  

The amount of compensation involves an element of compensation for the effects of the discrimination on someone who was a low paid worker at €144 gross per week. The compensation also includes a further element of compensation by way of a deterrent for the Respondent who, from the evidence in this case, seems to need to brush up considerably on his knowledge of employment law generally and the rights of those with a disability under the EEA and a pregnancy related disability in particular.

CA-00048687 The complaint brought by the Complainant Tara Curran against the RespondentEdward Slevin is well founded. I order the Respondent to pay €5500 in compensation to the Complainant.

EEA- dismissal - discrimination on the disability ground