Complainant

Respondent

Parties

Ivana Cepo

Sherborough Enterprises Ltd.

Representatives

  Self

 Company Management

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-00046403-001

27/09/2021

The Complainant worked for the Respondent from 30th September 2019 until 1st July 2021.

The Complainant was employed as a property administrator and paid €25,000 pa.

This complaint was received by the Workplace Relations Commission on 27th September 2021.

The Complainant contends that she was discriminated against as soon as she announced her pregnancy to the Respondent.

The Complainant states that her probationary period ended successfully and that she had been informed of this by her manager. It is the Complainant’s contention that when her line manager left the company in August 2020 and that the company owner took over as her line manager at that time and shortly thereafter, he informed the Complainant that her probationary period had not ended and that she had not in fact passed.

The new line manager (company owner) invited the Complainant to a meeting, and it was at this meeting that the Complainant contends that she was offered €4,000 by the owner to leave the company. The Complainant has stated that at the time of this meeting she was 7 months pregnant.

The Complainant was advised by the owner that the previous line manager was not happy with her performance. The owner who was now the line manager provided the Complainant with a list of mistakes that he had been informed of by the previous line manager. It is the Complainant’s contention that each of the events listed by the owner had taken place after the previous line manager had left and the Complainant feels that they were not her mistakes.

At the end of this meeting the Complainant states that she was sent home to discuss the offer with her partner. The Complainant claims she left the hearing feeling scared for her future and that she was in no shape prepared for the meeting that had just taken place.

On that same day the Complainant after she had arrived home telephoned the owner and asked what would happen if she refused the offer. She was informed “That is not changing the outcome. You will still be dismissed”.

At this point the Complainant contacted the HR Department and was informed by the Head of HR “ If I were you, I would take the money, because we can as well wait until you come back from your maternity and dismiss you two weeks after”. The Complainant refused the offer and returned to work two days later.

The Complainant contends that it was after she returned to work that the owner started to bully her, and this was happening on a daily basis which she mentioned in an email to the HR Department. The Complainant was advised to speak to the owner in relation to the bullying even though it was he who was bullying her.

The Complainant was informed that she would have performance reviews every week directly with the owner until such time as her maternity leave starts. The Complainant feels that the owner complained about everything she was doing and setting her unrealistic work tasks for her.

The Complainant was then advised by her GP to go on early maternity leave as she appeared to be very stressed and suffering from high blood pressure, the GP was concerned that the Complainant could go into early labour.

Prior to her return to work from Maternity Leave the Complainant received a letter from the Respondent stating that she was still in her probationary period and that on her return she would still have to attend weekly meetings with the company owner and that should her performance not be satisfactory she would receive two weeks’ notice.

On her return to work the Complainant’s place of employment was changed, she had to go through training on a new system and she continued to be given unrealistic tasks to fulfil. The Complainant was sent to work with people she did not know. The Complainant states that she felt isolated.

The company owner complained about her phone conversations, even though they were all work related calls. The Complainant states that her private phone number was given to a number of clients without her permission.

The Complainant contends that her working days were getting longer and that she would have to wait at some locations for contractors to arrive who were, at times, running hours late.

The Complainant stated that both the owner and HR were aware that she was still breast feeding and the place of work had no facility for her to express milk.

The owner continued to accuse the Complainant of making mistakes, which the Complainant states were not her mistakes and that notes taking at their meetings were wrong, that she had admitted to mistakes and apologised for etc… the Complainant states that this is simply wrong, she did not make the mistakes of which she was being accused.

On her last day in the company, she was invited to a meeting by the owner who informed the Complainant that he was going to record the meeting. The Complainant agreed to this but was never presented with a copy of any recording, what she did receive was a statement of what they had talked about and why she was dismissed.

The Complainant was dismissed and paid two weeks pay in lieu of notice.

Background

The Respondent is a property management company involved primarily in the letting of residential properties.  It is a family owned and family run business.

During March 2020 the Government forced the immediate closure of our offices, along with the wider economy, arising from the threat of Covid 19.  At this point, the extent of the Covid 19 pandemic including how long forced closures would remain in place was unclear.

During the period from 16th March 2020 through 22nd June 2020 our offices remained closed, and the Complainant was placed on layoff along with her sole colleague in the property administration office.

Background to the Employee

The Complainant commenced employment with the Respondent on 30th September 2019 as a property administrator.

The Complainant along with all her other colleagues working for the Respondent was on layoff from March 2020 for a period of 13 weeks due to the Covid 19 restrictions and was not attending work and therefore was unable to complete her probationary period review prior to her return to work.

The Complainant returned to work on 22nd June 2020 and her probation review was carried out by her manager at the time Mr EC.  Mr EC review at this time was solely based on the Complainant’s work from 30th September 2019 to March 2020, given the Complainant was on layoff from March until June. It is important to note that the Complainant was not pregnant during this period.

The Complainant had a further probationary review with Mr EC on 20th August 2020 where again she was advised that she had failed to reach the adequate level of performance for her role.  The Complainant advised her manager of her pregnancy at this point.

Mr EC departed the business in August 2020 at which point the Complainant and all her other colleagues working for the Respondent began reporting to Mr O’C as property manager.  Mr O’C encountered similar and recurring performance issues with the Complainant.  A third probationary review meeting was held with the Complainant on 29th September 2020 and memos of the meeting issued on 30th September 2020 and 1st October 2020 by the HR Department which clearly lists key areas and objectives for the Complainant to focus on and try demonstrating an improved ability.

The meeting also clearly clarified that the Complainant’s probationary period would be paused for the duration of her maternity leave and would recommence when she returned.  It was agreed at this point that there would be a further probationary review meeting on 20th October 2020 prior to the Complainant commencing maternity leave earlier than originally planned.

The Respondent wrote to the Complainant on 27th May 2021 confirming her return to work date was 8th June 2021 and her probationary period expired on 18th June 2021.  The letter reiterated key areas of focus and objectives for the Complainant and outlined the process of a review meeting on 11th June 2021 followed by a final probationary review on 18th June 2021.  At both meetings, the Complainant was presented with evidence where she was clearly failing to perform her role and her employment was terminated.

The Respondent response to complaint details.

1.       The Complainant claims “my probationary period ended successfully, which I was advised about by my manager.  After manager left, owner took over and told me that my probation had not passed”.

Respondent response to claim 1:

The Complainant did not successfully pass her probation, this is the Complainant’s first probation review dated 24th June 2020, carried out by her then manager Mr EC.  The review is solely based on her performance from 30th September 2019 to March 2020 as the Complainant was on layoff and not in work from March 2020 to June 2020.  The second last page clearly notes that the probation review was not passed, and it was extended by 3 months.  The Complainant signed the document and initialled every page.

The Complainant’s second probation review was carried out by Mr EC on 2nd September 2020. Page 1 of the performance review which, is completed on our HR portal flow, notes Mr EC saying “the probation period has been extended to give the Complainant more time to demonstrate her ability to meet the requirement of the job”.  The review clearly grades the Complainant’s performance as “getting there” in 5 of the 7 listed performance competencies, a grade of “getting there” notes improvement but clearly confirms that further improvement is required to meet the required performance standards.

It is important to note that the Complainant was pregnant at the time and while the manager could have made the decision to fail the Complainant’s probation based on her overall sub-standard performance, a decision was made to extend her probation to allow her every opportunity to demonstrate acceptable performance both prior and post her maternity leave.

The Complainant’s third probation meeting was carried out by Mr O’C on 29th September 2020.  Mr EC had departed the company and the Complainant was now reporting to Mr O’C as manager of the property department.  The letter dated 1st October 2020 clearly states the Complainant had not performed adequately to pass probation at that stage.  This letter was delivered by hand and emailed to the Complainant.  Please also see an email from Ms S Director of HR to the Complainant restating the facts of her probationary reviews which also included email attachments from Mr O’C detailing five specific and documented performance failures by the Complainant in the month of September alone.  The performance failures were related to the most rudimentary elements of the Complainant’s role, All emails were sent to the Complainant as attachments in Ms S, Director of HR’s email on 20th September 2021.

The Complainant commenced her maternity leave on 13th October 2021.

The Respondent wrote to the Complainant on 27th May 2021, advising her that her return  to work date from maternity leave was 8th June 2021 and outlined specific performance areas for the Complainant to focus on.  The Complainant’s fourth and final probation review was on 18th June 2021 with Mr O’C and was clearly advised that she had failed to pass probation and provided documentary evidence of the multiple performance issues.

2.       The Complainant claims “my place of work was changed”.

Respondent response to claim 2:

Please note the “place of work” subheading on page 1 of the Complainant’s employment contract at It clearly notes that the Complainant’s normal place of work will be between Hospitality House and Cathedral Court.

The Complainant’s place of work was never changed, and her role always required the split between two different offices.

3.       The Complainant claims “I informed the owner and HR that I am still breastfeeding and place that I was on waiting had no facilities for me to express milk”

Respondent response to claim 3:

Mr O’C the person the Complainant refers to as the owner and Mr S, Director of HR confirm that the Complainant never informed either party she was still breastfeeding, either verbally or in writing.

Both separate places of work offer private changing facilities ideal for breastfeeding

4.       The Complainant claims “notes taken on the (performance) meeting were completely wrong .. I challenged notes which were clearly written by the owner himself, and not the HR representative”.

Respondent response to claim 4:

The Complainant’s claim is false and baseless.  An email record to the Complainant and Mr O’C by the HR manager noting the Complainant’s agreement with the relevant matters.  The Complainant clearly agrees with the record of the meeting, see her email response at on 8th October 2020.

5.       The Complainant claims she “went back to work, after two days that were unpaid, and I had to take holidays to cover for that period”.

Respondent response to claim 5:

The Complainant is referencing the period of October 2020 in this portion of her statement, as it is the period following her review on 30th September.  The Complainant worked from 1st to 12th October 2020 inclusive that month, prior to commencing her maternity leave on 13th October 2020.

There were only eight working days in total during 1st to 12th October. The Complainant was clearly paid in full for the eight days work during that month.  The Respondent payroll system would note on the pay slip if there was any annual leave taken during a period.

Conclusion

The Complainant’s claims of discrimination, harassment based on her gender and family status are totally baseless and without foundation.  The five claims by the Complainant have been proven to be factually incorrect and supported with documentary evidence to confirm the truth.  The Complainant makes further claims regarding being offered a settlement and being pressurized by her manager and HR to accept it, this is simply untrue, and the Complainant has offered no evidence to support her claim.  The Respondent is trying to highlight that there is a recurrent pattern of factual inaccuracies with the Complainant’s claim.

The facts of the matter are the Complainant had been made aware of her performance issues by her manager Mr EC prior to her becoming pregnant.  The Complainant’s probation was in fact extended due to her pregnancy to allow her every opportunity when in normal circumstances her probation would not have been extended beyond her second review in August 2020 with Mr EC.

The Complainant had performed unsatisfactorily prior to her pregnancy, during her pregnancy and post her pregnancy.  There was never any sudden change in the Complainant’s performance reviews during her employment as evidenced by the four separate reviews she had with two separate managers.  It is critical to note that the Complainant was not pregnant at the time she failed her probation.

A fair procedure was followed before dismissal took place.  The Respondent refers to the case Maha Lingam v HSE (2005) IESC 89 where Mr Justice Fennelly in the Supreme Court confirmed the need for fair procedures relating to the ending of employment during or at the end of probation period is not as onerous on an employer.  However, in this case, the Complainant was given time to turn around her performance with the extensions of the probationary period but to no avail.

Consequently, the Complainant’s employment was terminated due to her inability to perform basic administrative duties to an acceptable standard and is in no way related to her gender or family status.

I have considered the complaint carefully and would now note the following:

1.       In relation to the probationary reviews conducted with Ms Cepo I note the first review took place on 24th June 2020 Her line manager, Mr. Commins conducted this review hearing.

Ms Cepo was reviewed under 7 headings: Under all 7 headings Ms Cepo’s performance was rated at GT (getting there). This is the third of four possible ratings (RM - Role Model; PW – Performing Well; GT – Getting There; UP – Under Performer).

Following this review, it was decided by Mr. Commins to extend the probationary period by up to 3 months.

2.       At the next review dated 20th August 2020 Ms Cepo received a rating of GT (getting there) in five out of the 7 headings, she scored PW (performing well) in the other 2.

On 30th September 2020 the Complainant wrote to the HR Department:

“I was invited to a meeting with Mr Charles O’Callaghan who informed me that I didn’t pass my probation and that he would like to terminate my contract” ……….

Later on, in the same email the Complainant states the following:

“I would like to inform you that I do not want to accept offered settlement in the form that I was offered (4000€ netto) and will not resign by myself as unfortunately, except my current pregnancy, I cannot see any clear reason for this kind of treatment.

On 30th September 2020 the Complainant spoke to Ms Sam Shepherd, Group Director of Human Resources and contends that Ms Shepherd informed her over the phone “I would take it if I were you because next time you wont get any offer and we can dismiss you 2 weeks after your maternity”.

The same day, 30th September 2020, Ms Sam Shepherd, Group Director, Human Resources wrote (via email) to the Complainant, this letter read as follows:

Hi Ivana,

I refer to our conversation today in relation to the extension of the probationary period relating to your employment.  As discussed, you had a review with EC in June 2020 when a number of areas of concern were raised and the probationary period was extended for a further three months and this document was signed by you (copy attached).  You accepted that this occurred.

EC then completed a further review on 20th August 2020 a record of which is on Flow and which you told me you have a copy of.  In this he stated, “Probation period has been extended to give Ivana more time to demonstrate her ability to meet the requirements of the job”.  You said that you believe you had passed the probation period but there is no evidence to suggest this.  Furthermore, EC has confirmed that he did not verbally tell you that you had passed the probationary period and that in the review he was further extending the period to allow you the time to improve, particularly as there had been a period of layoff due to Covid 19.  He discussed the areas of concern, and these are outlined in the review.  For example, “I expect her to take full ownership of the inspection prospect”, “one area we have discussed which requires attention is written communication” and “she needs to show enthusiasm and leadership during meetings and day to day tasks.  This is particularly important given the size of the team”.

As discussed on the call, we measure performance through the competency framework and there are 7 elements.  In 5 of those areas, you were marked as “Getting There”.  This does not signify performance to the required standard – to pass the probationary period you would need to demonstrate that you were Performing Well which is not the case based on the completed reviews.  You have had two reviews with EC and then the follow-up conversation with Charles where concerns about your performance have been outlined to you.  You stated that you had not been given any evidence of your shortcomings which is simply not true.  I attach details from Charles of the specific issues discussed and the back-up information in the attachments.

You told me that you have 12 months service with the business and that we cannot extend the probationary period further.  However, you were on temporary layoff from 16th March to 22nd June and therefore this period would not count as service because you were not at work to be able to fulfil your duties or to work on the feedback provided.  It is therefore reasonable that the probationary period be further extended, enabling you the opportunity to improve to the required standard.

In order to clarify matters further and to ensure that you understand the areas that you need to demonstrate improvements in for you to pass the probationary period, I would like to arrange a meeting with Charles and Aileen from HR will also be present.  Charles will discuss the areas again and his expectations regarding your role.  This meeting will take place tomorrow at 1pm at Hospitality House.  Please ask for Aileen when you arrive.

Please note, for final clarification, you have not been dismissed from your employment.  The probationary period has been extended for a period of 13 weeks to allow for the period that you were on layoff and therefore unable to demonstrate the required improvements.  You mentioned that your maternity leave will start from 26th October and therefore you have a number of weeks to focus on the requirements for the role and will receive feedback during this time.  If at the point of commencing maternity leave you have not reached the required standard, the probationary period will be paused until you return to work.

There was no reference made in this letter to the offer of €4,000 to resign contended by the Complainant.

At the hearing of the complaint the Respondent stated that the offer of €4,000 was absolutely not made to the Complainant.

The Complainant was scheduled to commence maternity leave on 26th October 2020. For health reasons her maternity leave began on 13th October 2020.

On 27th May 2021 the Respondent wrote to the Complainant outlining that she would be returning to work from Maternity Leave on 8th June 2021 and that on her return she would still be on a probationary period of employment for a further four weeks i.e. until 6th July 2021. This letter also pointed out that should her performance not improve to the required standard within a period of two weeks she would be issued with two weeks’ notice.

On her return to work she would now be based in Hospitality House, primarily for training purposes (a new software management system had been installed during her maternity leave), she would be reporting to the Director, Mr Charles O’Callaghan. She would meet with Mr O’Callaghan on a weekly basis to review her performance and the improvements required in her performance.

The Complainant contends that on her return to work that she was overly controlled and was constantly on management’s radar. She provides an example in which she was retained on a site 45 minutes after her official finish time with no place to breastfeed or express her milk. The Complainant contends that she was contacted by Mr O’Callaghan on this occasion who shouted at her in front of her partner, a friend and her baby. When the Complainant brought this issue up with Mr O’Callaghan, she (the complainant) contends that Mr O’Callaghan told her “well you have no way of proving that”.

The Complainant has also contended that at her final meeting with Mr. O’Callaghan the minutes were recorded by Mr. O’Callaghan, the Complainant had agreed to this and asked Mr O’Callaghan to provide her with a copy of the recording. The complainant never received a copy of that recording. The Complainant is of the belief that the reason behind not supplying her with a copy of the recording was the fact that the Complainant had mentioned the offer of €4,000 mentioned at an earlier meeting. The Complainant adds that the HR manager who was also present at the meeting asked Mr O’Callaghan if he wanted to make a comment on this matter and he said no.

There has been many things said in relation to this complaint and there are many contradictions by both parties in relation to the complaint.

Purely based on the balance of probability I find that the complaint is well founded and now order the Respondent to pay the complainant the sum of €12,500 in compensation for the effects of this discrimination.

Such sum should be paid within 42 days from the date of this decision.

Purely based on the balance of probability I find that the complaint is well founded and now order the Respondent to pay the complainant the sum of €12,500 in compensation for the effects of this discrimination.