FULL RECOMMENDATION
SECTION 33 (1), MATERNITY PROTECTION ACTS, 1994 AND 2004 PARTIES: ASTRA LEISURE & ULTRA FRESH SERVICES LIMITED - AND - MS SVETLANA GRODZICKA (REPRESENTED BY CHRISTINA O'BYRNE B.L., INSTRUCTED BY MCGUIGAN SOLICITORS LLP) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00029417, CA-00039322-005 DETERMINATION: This is an appeal under the Maternity Protection Acts 1994 and 2004, ‘the Acts’. Ms. Grodzicka, ‘the Complainant’, commenced working for Astra Leisure, ‘the Respondent’, in November 2017. She commenced maternity leave on 2 March 2020. Subsequently, while she was on maternity leave, her employment ceased. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, in August 2020 claiming discriminatory dismissal due to pregnancy, contrary to the terms of the Employment Equality Acts 1998-2015. Subsequently, on 27 October 2020, she lodged complaints under the Minimum Notice and Terms of Employment Act 1973 and the Maternity Protection Acts 1994 and 2004. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed to this Court. The Respondent did not attend the Court hearing of this appeal. Preliminary Issue Section 41 of the Workplace Relations Act 2015 provides as follows; (6) Subject tosubsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to insubsection (6)or(7)(but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The complaint was submitted on 27 October 2020. The submission on behalf of the Complainant states that the Complainant learned on 1 April 2020 that her employment had been terminated on 11 March 2020. Therefore, the Court has to determine if a valid complaint was submitted within 6 months of the act complained of or ,if not, if reasonable cause exists to extend that limit to 12 months. As this matter relates to the Court’s jurisdiction, it is necessary for the Court to determine this matter before any consideration can be given to the substantive case. Summary of Complainant arguments regarding the preliminary issue The Complainant commenced maternity leave on 2 March 2020. The Respondent terminated her employment on 11 March 2020. Furthermore, the Respondent failed to communicate this termination to the Complainant. She discovered this by chance when she accessed her online Revenue account. She texted her manager, Mr. Andy Cullen, on 1 April 2020 seeking clarification. She believed that she would be returning to work following her maternity leave. No resignation was ever submitted by her. Mr. Cullen confirmed that her employment had ceased. Subsequent to giving birth, the Complainant contacted Mr. Cullen again on 16 May 2020 and the text exchange with him provided to the Court suggests that the reason for the termination was an expectation that the company would be sold or closed due to Covid requirements. The Complainant stated that she expected to return to work the following September and was given an ambiguous response to suggest that she check back in June. The Complainant continued to believe that the cessation of her employment was temporary. The Complainant contacted Mr. Cullen in June 2020 and he stated that it was unclear when the business would re-open due to Covid restrictions. On 3 July 2020, the Complainant contacted Mr. Cullen looking for some documentation and said ‘if I am ceased without noticed by Shir I’m looking for my P45’. Mr. Cullen later clarified that a P45 was not necessary. The Complainant was shocked at the termination of her employment and suffered stress and anxiety. The act complained of , occurred in September 2020, when the Respondent failed to allow her return from work after maternity leave, contrary to s.26 of the Maternity Protection Acts 1994 and 2004. Alternatively, it occurred on 3 July 2020 when the Complainant had her dismissal confirmed. Both alternatives mean that the complaint was submitted within the required 6 months. However, if the Labour Court accepts that the employment ended on 11 March 2020, an extension on the basis of reasonable cause is warranted in circumstances where the Respondent failed to notify the Complainant that her employment was permanently terminated. The Complainant made every effort to obtain clarity regarding her employment. When she did so, she was given ambiguous responses and she cannot be held to be responsible for any delay in submitting her claim. The Complainant meets the tests for ‘reasonable cause’ set out inCementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425. Witness evidence Ms. Svetlana Grodzicka. Ms. Grodzicka is the Complainant. The witness said that she had agreed with Mr. Andy Cullen that she would commence maternity leave on 2 March 2020. On 1 April 2020, when she logged into her online Revenue account, the witness saw that she was listed as ‘ceased’ from her employment with the Respondent from 11 March 2020. She said that she was shocked and that she had correspondence with Mr. Cullen. She had not been notified of a dismissal. Subsequent to giving birth, on 16 May 2020 the Complainant asked Mr. Cullen in correspondence if she was ceased for good. He confirmed this but suggested that she check back with him in June. The witness said that everybody knew that the business was being sold but there were no worries about this as staff were assured that they were all being kept. The witness said that when she sought her P45 in July 2020 she understood that the termination was ‘done’. In response to questions from the Court, the witness said that Mr. Cullen had not called her after the correspondence on 1 April 2020. She said that she was confused. The witness was asked if being told that she was ‘ceased’ could not be clearer, to which she replied that she was shocked. When then asked why she had not challenged this, the witness said that she was about to give birth, the music school had closed, she had no work and this was her first experience of this kind. The witness confirmed that she had not challenged the fact that staff with less service had been retained as she was ‘pre-occupied’. The witness said that when she left on maternity leave, her relationship with Mr. Cullen had been good and he had given her €300 ‘for the baby’. The witness said that she had not given her notice and believed that she would return to work after maternity leave. The witness confirmed that all other colleagues had returned to their jobs. Deliberation The applicable law is set out above. It is not disputed that the Complainant learned on 1 April 2020, when she accessed her Revenue on-line account, that the Respondent had notified Revenue of the termination of employment, with effect from 11 March 2020. As a result, she asked her manager ‘..is my employment with Astra ceased?’ to which she received a reply, ‘Yes it has..’. On the face of it, that seems self evident and inarguable proof that the employment ceased on that date and that the Complainant was aware of this from 1 April 2020. However, it is argued for the Complainant that she was not clear until 3 July 2020 that this termination was permanent and that there was ambiguity in the Respondent’s responses to her. In response to a question from the Court, when she was asked if being told that her employment had ceased could not be clearer, the Complainant replied that she was shocked. This indicates further to the Court that the Complainant understood at that point, what seems obvious in consideration of the facts, that her employment was terminated from 11 March 2020. Subsequent correspondence with her manager appeared to hold out a possibility of a return to employment at some future point but it does not change the stark fact that the Complainant’s employment was, quite evidently, terminated on 11 March 2020 nor does it alter the fact that the Complainant was aware of this from 1 April 2020. For this reason, it is clear to the Court that messaging in early July regarding a P45 provides no basis for suggesting that the act complained of occurred only at that point. Likewise, the suggestion that the Court should consider September, when the Complainant would have been due to return from maternity leave, as the relevant date is somewhat compromised, to put it mildly, by the rather glaring fact that, by then, the Complainant had lodged a complaint of discriminatory dismissal in August 2020. Accordingly, the Court determines that the complaint was submitted outside of the 6 months’ time period, which ran from the date of her dismissal on11 March 2020. The Court was asked to consider, in the alternative, an extension of this period on grounds of reasonable cause. The Court in ‘Cementation Skanska’,(see reference above), set out clearly the requirements for reasonable cause to be established, as follows; It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. In applying these requirements to the instant case, the Court cannot ignore the exchange of messages referenced above in which the Complainant was advised very clearly that her employment had ceased on 1 April 2020. The Court is satisfied that she knew from that date that she was no longer employed by the Respondent. The Court can accept that she was, as per her evidence, shocked to learn this but it seems clear that this shock arose because she learned that her employment was terminated. Any such shock cannot explain or justify delay beyond six months in lodging a complaint under the Act. While subsequent correspondence after 1 April 2020 held out a possibility to the Complainant that she might, at some future point, be able to return to the employment, she knew from 1 April that her employment was terminated and nothing prevented her from lodging complaints in the 6 months’ period. While the Court, as it must, appreciates that the Complainant had other matters on her mind with the birth of her new baby, the fact is that the Complainant was capable of lodging a complaint under the Employment Equality Acts within the required 6 months in August 2020. This raises the obvious question as to what reason might be relevant that would explain the delay in lodging complaints under other Acts and what reasons can afford an excuse for such delay, given that the Complainant did not apparently have any reason to delay submission of the complaint under the Employment Equality Acts? There is no obvious reason to distinguish between the capability of the Complainant in lodging a complaint under one Act, as opposed to another. In short, therefore, the Court is not persuaded that any cogent argument has been put to it that would meet the requirements for reasonable cause, as set out by the Court in‘Cementation Skanska’. Accordingly, the Court determines that the complaint was submitted outside of the six months’ limit and that no reasonable cause has been provided that would allow the Court to extend the limit. Determination The Decision of the Adjudication Officer is varied. The Court lacks jurisdiction to reach a Determination on the substantive case.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
