Complainant

Respondent

Parties

Alicia  Jah

Tangneys Optician

Representatives

  Self-Represented

Eanna O'Malley of Lynch & Bradley Solicitors LLP

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-00051388-001

27/06/2022

The issue in contention concerned an allegation of Unfair Dismissal on the Pregnancy grounds of a Retail Assistant by an Optician Practice.

The employment began on the 1st December 2021 and ended on the 25th May 2022.

The rate of pay was €1230 per month for a 40-hour week.

The Complainant gave an Oral Testimony supported by a lengthy statement on the Complaint form. She was subject to a searching cross examination by Mr O’Malley for the Respondents.

The employment began without incident.  On the 21st March 2021 she felt unwell and went to A&E in the local Hospital. She was diagnosed with Covid 19 and certified off work until the 4th April.  On her return to work on the 4th she was informed by her employer that her last day would be the 8th April. She was told “things are not working out” On the 9th the Respondent called her and asked her to come in for “a chat”. The Employer was prepared to give things “another go” if she was interested. She agreed to come back but informed her employer that she was pregnant.  On the 12th of May she was told that her employment would be ending in a few weeks. The Premises was due to close to allow renovations take place from the 25th May until the 3rd June. On the 24th May she was informed that it was her “last day”. The Respondent also alleged that the Complainant had closed the shop for an extended break the previous Saturday leaving customers, who called, without service.

She heard nothing further from the Respondent and was ceased with the Revenue.

Mr O’Malley, for the Respondent, in cross examination queried her extensively on when exactly she had told the Respondent Principal, Ms T, that she was pregnant. The Complainant stated that on the 4th April she was not aware that she was pregnant and had accordingly not told Ms T. In further cross examination it was agreed that the “first dismissal” was the 4th April. She had been, Mr O’Malley maintained, given a new temporary employment while Ms T found another person as a replacement. She did not agree that the Interviews that were going on in the Shop in May were for her job.

In summary the Complainant maintained that she had been not been properly dismissed on the 4th April and her employment had continued, effectively unbroken, after the 11th April.

Once the Respondent was made aware that she was Pregnant that “was it” as regards her employment.

She was Unfairly Dismissed on the Pregnancy grounds and was able to bring her claim under the 1977 UD Act, even though she did not have a full twelve months service.

The Respondent Principal, Ms T, gave an Oral Testimony and submitted a detailed written Submission. Mr O’Malley was the Spokesperson.

The Complainant was taken on a probationary basis in December 2021. It soon became clear that her performance was unsatisfactory and was the subject of complaints from other staff and customers. Ms T had tried to vary the work and give extra training but to little positive effect. She had spoken to the Complainant to bring issues to her attention to try to seek improvements.

The Complainant was on Covid Sick leave from the 24th March to the 4th April 2022. During this time the Respondent, after careful consideration, decided to end the employment. She told the Complainant on her return on the 4th April that she was to finish on the 8th April. There was absolutely no mention of Pregnancy at this time. On the 11th April the Complainant asked the Principal, Ms T, to reconsider her decision. The Complainant was facing a Rent increase and she missed the job which she had liked. At this stage she had mentioned that she was Pregnant. The Respondent, Ms T, agreed to give the Complainant a few weeks temporary employment while she looked for other work. It was emphasised that it was temporary for a few weeks only. Job interviews for the Complainant’s position were ongoing at this time and the Complainant had to have been aware of them. On the 24th May the premises closed for renovations and the employment ended. The Principal Ms T emphasised that the ending of the employment was completely performance related and had been taken well before the issue of Pregnancy was raised. She was dismissed on poor performance grounds.

The Complainant did not Cross Examine Ms T.

3:1          The Legal Position.

The Complainant does not have twelve months service and is relying on Section 6 (2) (f) on the UD Act ,1977 (quoted below) to base her case.

Unfair dismissal.

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

 (f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

This area is discussed at some length at Section 14.13 in Redmond on Dismissal Law 3rdEd,2017  by Dr D Ryan.  Ryan states that

“The employee must discharge the onus of proof that she was dismissed by reason of pregnancy. It will be for the Employer to establish that the real reason for dismissal was not pregnancy.”

Case Law is cited to support both sides of the arguments, but Ryan does point out that a dismissal can be upheld in favour of the employer where it can be established that poor performance or behaviour by the Employee was the main reason for the Dismissal. McGrath v Burke 957 P23/1988 and Hallissey v Pretty Polly (Killarney) ltd UD 362/1984 are cited by Ryan but were not raised during the hearing.

In this case the conflict of evidence rests on whether or not the Dismissal took place before the Pregnancy was announced and whether or not there were other issues involved. A review of the evidence is crucial here.

3:2        Review of the Evidence.

The vast body of evidence in this case was by way of Oral Testimony and Cross Examination. All evidence was given under Sworn Oath and the perils of perjury were pointed out at the opening of the case.

It was clear that Notice of Dismissal was given and implemented on the 4th April 2022. The sworn evidence of the Respondent Principal, Ms T, was that she had decided to dismiss the Complainant for poor performance before this date and in complete ignorance of any pregnancy. In cross examination of the Complainant by Mr O’Malley she ,the Complainant , agreed that Ms T was unaware of any pregnancy at the 4th April.

The question then moves to the Employment post the 11th April 2022. Ms T maintained that it was a purely temporary “good will casual” arrangement while a new employee was sourced. She maintained that the new arrangement was not a formal continuation of the pre-4th April employment. It was always made clear that it was only “for a few weeks and was going to end”.  There was no reference to any Pregnancy in the purported “Casual Work” arrangement.

The Oral Testimony under Oath is now crucial. Ms T, the Respondent Principal, stated under Oath, that the Dismissal decision was taken prior to the 4th April and communicated to the Complainant on her return from Covid Sick leave. Pregnancy was not an issue at this stage. The Complainant, again under Oath, agreed under cross examination that she had been dismissed on the 4th April with no reference to Pregnancy.

This situation is therefore precluded from the short service exemption of the Unfair Dismissals Act ,1977.

The second period of employment described as “Casual/temporary” by Ms T lasted from approximately 12th April to the 24th May 2022 -approximately six weeks. Ms T maintained that the Complainant knew, without a doubt, that it was temporary and that the Premises would close for Renovations at the end of May.

The pregnancy of the Complainant, then well known, had nothing to do with ending this casual period of employment. Oral evidence is again crucial. Ms T ,under oath, stated that this work was “casual” only as a good will gesture. The Complainant has to succeed in arguing that this work could have continued indefinitely or certainly into the future, post the renovations, but was denied to her because she was then Pregnant.

The oral testimony of the Complainant was not very clear on this point.

3:3       Adjudication Conclusions

On balance the Adjudication view has to be, on the basis of sworn evidence with the clear warning of perjury given, that the Dismissal happened on the 4th April 2022. The post 12th April work was agreed in advance to be temporary as a “good will” gesture and the Pregnancy issue was not taken into account in considering whether or not to continue it.

Accordingly, the protections of Section Six (1)(f) the “Pregnancy time limit” exception do not apply.

Unfair Dismissal, Time limits, Under 12 months service.