Complainant

Respondent

Parties

Mary  Collins

Mayo Travellers Support Group Clg

Representatives

Mr. Paul Cunney, Paul J Cunney & Co. Solicitors

No Appearance

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-00044037-001

13/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00044037-003

13/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00049657-001

13/04/2022

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

CA-00049657-002

13/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00049657-003

13/04/2022

The Complainant commenced employment on 9th January 2012. At all relevant times the Complainant was engaged as a “family support worker”. The Complainant was a part-time employee, in receipt of an average weekly wage of €288.00 for 20 hours of work. The Complainant’s employment was terminated by the Respondent on 31st December 2021.

Om 13th May 2021, whilst still in employment with the Respondent, the Complainant referred complaints under the Employment Equality Act and the Maternity Protection Act. Following her dismissal, on 13th April 2022, the Complainant referred the remaining complaints listed above.

A hearing in relation to these matters was initially convened for 22nd May 2023. At the outset of this hearing, the representative for the Complainant advised the notice of hearing had been issued to the previous firm of solicitors on record. While the representative in question remained the solicitor on record, his firm, and consequently his address, had changed in the period between the referral of the complaints and the notification of the hearing. The solicitor advised that he had previously informed the mediation services of the Commission of this change of address. In circumstances whereby the solicitor had not received sufficient notice as so to prepared relevant submissions, he applied for an adjournment of the proceedings on these grounds. In circumstances whereby the Complainant’s representative had notified a section of the Commission of his change of address, this application was granted, and the matter was adjourned on the initial day of hearing.

Prior to resumed day of hearing, listed for 15th September 2023, the then solicitor for the Respondent confirmed that they were aware of the forthcoming hearing, but had no instructions in relation to the submission of a defense or appearance at the hearing.  Thereafter, there was no appearance by or on behalf of the Respondent at the hearing as listed. In circumstances whereby the Respondent was clearly on notice of the time, date and venue of the hearing, the matter proceeded in their absence and on the basis of the Complainant’s evidence only.

The Complainant gave direct evidence in support of her complaints. All evidence was given under oath, with the Adjudicator making enquiries as appropriate. While the Complainant raised numerous issues regarding the operation of the Respondent, particularly in relation to data protection concerns, the Adjudicator advised that the decisions below would be confined to the statutory complaints referred by the Complainant.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings.

CA-00044037-001 Complaint under the Employment Equality Acts

In evidence, the Complainant stated that was engaged as a “family support worker” for the Respondent organisation. On 9th June 2020, the Complainant commenced a period of maternity leave.

Whilst on maternity leave, the Complainant was routinely and persistently contacted to work on various projects. In evidence, the Complaint outlined the substance of these projects including; assisting in the production of a promotional video, an ongoing support project of which she was part prior to her maternity leave and requests to issue information to certain bodies. Regarding the final point, the Complainant outlined that this request was made to allow the Respondent to achieve certain key performance indicators.

In evidence, the Complainant submitted she had no choice but to complete the above-mentioned tasks despite being on maternity leave. She stated that she sought to raise the issue with her line manager but was effectively ignored. The Complainant stated that the Respondent’s insistence that she complete these duties while on maternity leave had a detrimental effect on her wellbeing and contributed to feelings of anxiety and stress at a vulnerable time.

CA-00044037-003 Complaint under the Maternity Protection Acts 

In addition to the foregoing, the Complainant submitted that as a consequence of her being asked to work during her maternity leave, she was not in a position of avail of the various protections set out in the Maternity Protection Acts.

CA-00049657-001 Complaint under the Redundancy Payments Acts

In evidence, the Complainant advised that she was dismissed by correspondence dated 24th November 2021. Whilst this correspondence stated that the rationale for the termination of employment was the expiry of her fixed-term contract, she submitted that she was entitled to a contract of indefinite duration and that the dismissal was unlawful. Notwithstanding the submissions in this regard, and in the event the Complainant is not successful in the relevant complaint in relation to the same, the Complainant submitted that she was entitled to a redundancy payment on the termination of her employment.

CA-00049657-002 Complaint under the Unfair Dismissals Acts

In addition to the foregoing, the Complainant submitted that the Respondent did not engage in any form of process or consultation prior to her dismissal, rendering the same unfair. 

CA-00049657-001 Complaint under the Protection of Employees (Fixed-Term Work) Act

The Complainant submitted that from the commencement of her employment she was engaged on a series of fixed-term contracts. In circumstances whereby the Complainant received nine such contracts, covering a period of almost nine years, the Complainant submitted that she was entitled to a contract of indefinite duration by operation of the impleaded Act.

In answer to a question posed by the Adjudicator, the Complainant confirmed that she wished to purpose the matter of dismissal under the Unfair Dismissals Act or, in the alternative, the Redundancy Payments Acts and that she wished to pursue the matter of the non-provisions of a fixed term contract under the present Act.

There was no appearance either by or on behalf of the Respondent. In circumstances whereby they were clearly aware of the time, date and venue of the hearing, the hearing proceeded in their absence.

Regarding the order of consideration of the present complaints, the matters under the Employment Equality Act will be considered in advance of those relevant to the termination of the Complainant’s employment. Regarding these matters, it will firstly be determined whether the Complainant was engaged under a contract of indefinite duration. Following from the same, the complaint under the Unfair Dismissals Acts will be considered, which will, in part, determine the complaint under the Redundancy Payments Act.

CA-00044037-001 Complaint under the Employment Equality Acts

Regarding this particular complaint, the Complainant alleged that she was persistently and routinely called upon to work during a period of maternity leave. In evidence, the Complainant outlined numerous examples of the work she was called upon to complete and her unsuccessful efforts to raise this issue with management. In circumstances whereby the Respondent did not attend the hearing, and did not provide any form of defence to these complaints, the Complainant’s evidence was essentially uncontested.

Notwithstanding the foregoing, the Complainant must still prove the primary facts relevant to this matter.

In this regard, Section6(1)(a) of the Act provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2) provides that gender and family status are included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” 

Regarding the present case, the Complainant’s position is relatively simple. She submitted that whilst on maternity leave, a period of protected leave, she was routinely called upon to complete work by the Respondent. In evidence the Complainant stated that she felt that she was not in a position to refuse to complete such work and indeed brought these concerns to the attention of her former employers during the currency of her employment.

In the matter of Mary Dempsey -v- NUI Galway EE/2009/275, the Equality Tribunal held that requesting that an employee complete work whilst on maternity leave constitutes discrimination on the grounds of gender.

Having regard to the foregoing, the Complainant has established the primary facts upon which a presumption of discrimination can be drawn.  The Complainant established, via her uncontested evidence, that she was called upon to involuntarily break her statutorily protected leave, in order to complete numerous tasks on behalf of the Respondent.

The Respondent did not call any witnesses or provide any form of defence that might serve to rebut this presumption.

Having regard to the foregoing, I find that the complaint is well-founded and that the Respondent discriminated against the Complainant.

CA-00044037-003 Complaint under the Maternity Protection Acts 

Regarding the above-mentioned complaint, the Complainant again submitted that she was required to work during a period of maternity leave. In such circumstances, she submitted that the Respondent is also in breach of this legislation.

In this regard Section 8(1) of the Act provides that,

“…a pregnant employee shall be entitled to leave, to be known (and referred to in this Act) as "maternity leave", from her employment for a period (in this Part referred to as "the minimum period of maternity leave") of not less than…(a) 26 consecutive weeks”.

In this regard whilst the term “maternity leave” contains no further definition with the above-mentioned Act, such leave must imply that the employee concerned is not required or called upon to complete any work-related actives during the protected period. By requiring the Complainant to complete numerous tasks during this period, the Respondent did not allow for the continuous period of leave stipulated by the Act, and as consequence, are in contravention of Section 8.

In this regard, in the matter of A Quality Manager -v- A Company ADJ-00035345, the Adjudicator found that a requirement to work during a protected period constitutes a breach of the Act.

Having regard to the foregoing, I find that the complaint is well-founded.

CA-00049657-001 Complaint under the Protection of Employees (Fixed-Term Work) Act

Regarding this particular complaint, the Complainant has alleged that they were entitled to a contract of indefinite duration by operation of the impleaded Act. In particular, they submitted that in circumstances whereby they had been engaged on nine separate fixed-term contracts, to an aggregate of almost nine years in duration, the relevant protections of the Act should apply.

In this regard, Section 9(2) of the Act provides that,

“Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.”

Having regard to the uncontested factual matrix outlined by the Complainant, it is clear that the protections provided for in the above-mentioned section apply to the Complainant.

Notwithstanding the same, Section 9(4) of the Act provides that,

“Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.”

Having reviewed the most recent contract provided by the Complainant, under the heading entitled “nature of employment” the contract states that the fixed term is “subject to continued funding” and “satisfactory performance”.

A number of points arise in relation to the above-mentioned provisions. Firstly, and most significantly, the Respondent called no witnesses or provided no submission of any description in relation to either of the matters listed above. Secondly, it is not expressly stated that these matters are to be considered objective grounds to justify the renewal of a fixed term beyond the term set out in Section 9(2). Finally, I note that in the matter of Teagasc v McNamara FTD138, the Labour Court has held that the appropriate remedy for a reduction of funding is the potential redundancy of a fixed term worker. The criterion of “satisfactory performance” is not a matter related to a fixed term and cannot constitute an objective justification for the non-renewal of such a contract in any event.

Having regard to the foregoing, I find that the Complainant in entitled to a contract of indefinite duration by virtue of Section 9(2) and that no objective justification within the definition of Section 9(4) has been established to justify any further renewals. In such circumstances, I find the complaint to well-founded and the Complainant’s application succeeds.

CA-00049657-002 Complaint under the Unfair Dismissals Acts

Regarding this particular complaint, the Complainant alleged that her dismissal was unfair for the purposes of the impleaded Act.

In this regard, the Complainant opened correspondence from the Respondent dated 24th November 2021. This correspondence simply informed the Complainant that her contract was to expire on 1st January 2022 and that her final payment would be received one week previous, with the obvious implication that the Complainant’s employment was to be terminated on that date.

In evidence, the Complainant stated that the Respondent did not engage in any form of process or procedure prior to terminating her employment. She further outlined that on the date of her termination, the Respondent remained active as a going concern. Nonetheless, the Complainant confirmed that the organisation was subject to an external audit shortly thereafter, with the majority of staff being placed on lay-off. The Complainant confirmed that, to her knowledge, the Respondent entity had ceased operations in early 2022.

While this correspondence ostensibly refers to the expiry of the Complainant’s fixed term as the rationale for termination, it has been established in the decision above that the Complainant had been entitled to a contract of indefinite duration some years previously. In such circumstances, the fixed term of the Complainant’s contract is deemed to be void, and any termination based upon the same will be considered a dismissal by the Respondent as opposed to an expiry based on the passage of time. In addition to the foregoing, I note the most recent contract of employment opened by the Complainant was not signed by either party and did not contain any form of waiver in respect of complaints under the Unfair Dismissals Acts.

In circumstance whereby the Complainant was summarily dismissed by way of correspondence, without reference to any of the fair grounds of dismissal set out in the Act, I find that the Complainant was unfairly dismissed and, consequently, her application is well-founded.

CA-00049657-001 Complaint under the Redundancy Payments Acts

In circumstances whereby it had been determined that the dismissal of the Complainant was unfair for the purposes of the Unfair Dismissals Acts, her appeal under the Redundancy Payments Act is unsuccessful.

CA-00044037-001 Complaint under the Employment Equality Acts

I find that the Complainant was discriminated against and consequently, her complaint is well-founded.

Having regard to the totality of evidence presented, I award the Complainant the sum of €7,488.00 in compensation.

CA-00044037-003 Complaint under the Maternity Protection Acts 

I find that the complaint is well-founded and, consequently, the Complainant’s application succeeds.

While the subject matter of this complaint bears numerous similarities to the matter listed above, there is no statutory prohibition to both complaints being maintained in tandem. Nonetheless, in circumstances whereby an award of compensation has been made in respect of the above-mentioned matter, I find that it would be inappropriate to make a further monetary award in relation to the present matter.

CA-00049657-001 Complaint under the Protection of Employees (Fixed-Term Work) Act

I find that the complaint is well-founded and the Complainant’s application succeeds.

Regarding redress, the Complainant’s representative was careful to establish that the remedy sought in relation to this particular breach relates to the Respondent’s failure to award the Complainant a contract of indefinite duration and to continue to issue fixed-term contracts in contravention of the legislation.

Having regard to the foregoing, I award the Complainant the sum of €3,744.00 in compensation.

CA-00049657-002 Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. In circumstances whereby the Respondent had ceased operations, compensation is the most appropriate form of redress in this circumstance.

Regarding the calculation of said redress the Act provides that the same must be calculated with reference to the financial losses attributable to the dismissal. In this regard, Section 7(3) defines “financial loss” as,

“…any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973.”

In evidence, the Complainant accepted that approximately one month following her dismissal, the majority of the Respondent staff were placed on lay-off and were subsequently made redundant. In such circumstances, the Complainant’s financial loss arising from this complaint equates to one months’ salary of €1,248.00 and her statutory notice payment of €6,042.24- to a total of €7,290.24.

CA-00049657-001 Complaint under the Redundancy Payments Acts

In circumstances whereby it had been determined that the dismissal of the Complainant was unfair for the purposes of the Unfair Dismissals Acts, her appeal under the Redundancy Payments Act is unsuccessful.

Fixed-Term, Objective Justification, Maternity Protection

Complainant

Respondent

Anonymised Parties

Family Support Worker

Community Support Group

Representatives

Mr. Paul Cunney, Paul J Cunney & Co. Solicitors

No Appearance

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-00044037-001

13/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00044037-003

13/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00049657-001

13/04/2022

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

CA-00049657-002

13/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00049657-003

13/04/2022

The Complainant commenced employment on 9th January 2012. At all relevant times the Complainant was engaged as a “family support worker”. The Complainant was a part-time employee, in receipt of an average weekly wage of €288.00 for 20 hours of work. The Complainant’s employment was terminated by the Respondent on 31st December 2021.

Om 13th May 2021, whilst still in employment with the Respondent, the Complainant referred complaints under the Employment Equality Act and the Maternity Protection Act. Following her dismissal, on 13th April 2022, the Complainant referred the remaining complaints listed above.

A hearing in relation to these matters was initially convened for 22nd May 2023. At the outset of this hearing, the representative for the Complainant advised the notice of hearing had been issued to the previous firm of solicitors on record. While the representative in question remained the solicitor on record, his firm, and consequently his address, had changed in the period between the referral of the complaints and the notification of the hearing. The solicitor advised that he had previously informed the mediation services of the Commission of this change of address. In circumstances whereby the solicitor had not received sufficient notice as so to prepared relevant submissions, he applied for an adjournment of the proceedings on these grounds. In circumstances whereby the Complainant’s representative had notified a section of the Commission of his change of address, this application was granted, and the matter was adjourned on the initial day of hearing.

Prior to resumed day of hearing, listed for 15th September 2023, the then solicitor for the Respondent confirmed that they were aware of the forthcoming hearing, but had no instructions in relation to the submission of a defense or appearance at the hearing.  Thereafter, there was no appearance by or on behalf of the Respondent at the hearing as listed. In circumstances whereby the Respondent was clearly on notice of the time, date and venue of the hearing, the matter proceeded in their absence and on the basis of the Complainant’s evidence only.

The Complainant gave direct evidence in support of her complaints. All evidence was given under oath, with the Adjudicator making enquiries as appropriate. While the Complainant raised numerous issues regarding the operation of the Respondent, particularly in relation to data protection concerns, the Adjudicator advised that the decisions below would be confined to the statutory complaints referred by the Complainant.

At the outset of the hearing, the Complainant made an application for the decision to be anonymised in its published form. Given the sensitive and personal nature of the issues raised by the Complainant, this application was granted.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings.

CA-00044037-001 Complaint under the Employment Equality Acts

In evidence, the Complainant stated that was engaged as a “family support worker” for the Respondent organisation. On 9th June 2020, the Complainant commenced a period of maternity leave.

Whilst on maternity leave, the Complainant was routinely and persistently contacted to work on various projects. In evidence, the Complaint outlined the substance of these projects including; assisting in the production of a promotional video, an ongoing support project of which she was part prior to her maternity leave and requests to issue information to certain bodies. Regarding the final point, the Complainant outlined that this request was made to allow the Respondent to achieve certain key performance indicators.

In evidence, the Complainant submitted she had no choice but to complete the above-mentioned tasks despite being on maternity leave. She stated that she sought to raise the issue with her line manager but was effectively ignored. The Complainant stated that the Respondent’s insistence that she complete these duties while on maternity leave had a detrimental effect on her wellbeing and contributed to feelings of anxiety and stress at a vulnerable time.

CA-00044037-003 Complaint under the Maternity Protection Acts 

In addition to the foregoing, the Complainant submitted that as a consequence of her being asked to work during her maternity leave, she was not in a position of avail of the various protections set out in the Maternity Protection Acts.

CA-00049657-001 Complaint under the Redundancy Payments Acts

In evidence, the Complainant advised that she was dismissed by correspondence dated 24th November 2021. Whilst this correspondence stated that the rationale for the termination of employment was the expiry of her fixed-term contract, she submitted that she was entitled to a contract of indefinite duration and that the dismissal was unlawful. Notwithstanding the submissions in this regard, and in the event the Complainant is not successful in the relevant complaint in relation to the same, the Complainant submitted that she was entitled to a redundancy payment on the termination of her employment.

CA-00049657-002 Complaint under the Unfair Dismissals Acts

In addition to the foregoing, the Complainant submitted that the Respondent did not engage in any form of process or consultation prior to her dismissal, rendering the same unfair. 

CA-00049657-001 Complaint under the Protection of Employees (Fixed-Term Work) Act

The Complainant submitted that from the commencement of her employment she was engaged on a series of fixed-term contracts. In circumstances whereby the Complainant received nine such contracts, covering a period of almost nine years, the Complainant submitted that she was entitled to a contract of indefinite duration by operation of the impleaded Act.

In answer to a question posed by the Adjudicator, the Complainant confirmed that she wished to purpose the matter of dismissal under the Unfair Dismissals Act or, in the alternative, the Redundancy Payments Acts and that she wished to pursue the matter of the non-provisions of a fixed term contract under the present Act.

There was no appearance either by or on behalf of the Respondent. In circumstances whereby they were clearly aware of the time, date and venue of the hearing, the hearing proceeded in their absence.

Regarding the order of consideration of the present complaints, the matters under the Employment Equality Act will be considered in advance of those relevant to the termination of the Complainant’s employment. Regarding these matters, it will firstly be determined whether the Complainant was engaged under a contract of indefinite duration. Following from the same, the complaint under the Unfair Dismissals Acts will be considered, which will, in part, determine the complaint under the Redundancy Payments Act.

CA-00044037-001 Complaint under the Employment Equality Acts

Regarding this particular complaint, the Complainant alleged that she was persistently and routinely called upon to work during a period of maternity leave. In evidence, the Complainant outlined numerous examples of the work she was called upon to complete and her unsuccessful efforts to raise this issue with management. In circumstances whereby the Respondent did not attend the hearing, and did not provide any form of defence to these complaints, the Complainant’s evidence was essentially uncontested.

Notwithstanding the foregoing, the Complainant must still prove the primary facts relevant to this matter.

In this regard, Section6(1)(a) of the Act provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2) provides that gender and family status are included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” 

Regarding the present case, the Complainant’s position is relatively simple. She submitted that whilst on maternity leave, a period of protected leave, she was routinely called upon to complete work by the Respondent. In evidence the Complainant stated that she felt that she was not in a position to refuse to complete such work and indeed brought these concerns to the attention of her former employers during the currency of her employment.

In the matter of Mary Dempsey -v- NUI Galway EE/2009/275, the Equality Tribunal held that requesting that an employee complete work whilst on maternity leave constitutes discrimination on the grounds of gender.

Having regard to the foregoing, the Complainant has established the primary facts upon which a presumption of discrimination can be drawn.  The Complainant established, via her uncontested evidence, that she was called upon to involuntarily break her statutorily protected leave, in order to complete numerous tasks on behalf of the Respondent.

The Respondent did not call any witnesses or provide any form of defence that might serve to rebut this presumption.

Having regard to the foregoing, I find that the complaint is well-founded and that the Respondent discriminated against the Complainant.

CA-00044037-003 Complaint under the Maternity Protection Acts 

Regarding the above-mentioned complaint, the Complainant again submitted that she was required to work during a period of maternity leave. In such circumstances, she submitted that the Respondent is also in breach of this legislation.

In this regard Section 8(1) of the Act provides that,

“…a pregnant employee shall be entitled to leave, to be known (and referred to in this Act) as "maternity leave", from her employment for a period (in this Part referred to as "the minimum period of maternity leave") of not less than…(a) 26 consecutive weeks”.

In this regard whilst the term “maternity leave” contains no further definition with the above-mentioned Act, such leave must imply that the employee concerned is not required or called upon to complete any work-related actives during the protected period. By requiring the Complainant to complete numerous tasks during this period, the Respondent did not allow for the continuous period of leave stipulated by the Act, and as consequence, are in contravention of Section 8.

In this regard, in the matter of A Quality Manager -v- A Company ADJ-00035345, the Adjudicator found that a requirement to work during a protected period constitutes a breach of the Act.

Having regard to the foregoing, I find that the complaint is well-founded.

CA-00049657-001 Complaint under the Protection of Employees (Fixed-Term Work) Act

Regarding this particular complaint, the Complainant has alleged that they were entitled to a contract of indefinite duration by operation of the impleaded Act. In particular, they submitted that in circumstances whereby they had been engaged on nine separate fixed-term contracts, to an aggregate of almost nine years in duration, the relevant protections of the Act should apply.

In this regard, Section 9(2) of the Act provides that,

“Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.”

Having regard to the uncontested factual matrix outlined by the Complainant, it is clear that the protections provided for in the above-mentioned section apply to the Complainant.

Notwithstanding the same, Section 9(4) of the Act provides that,

“Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.”

Having reviewed the most recent contract provided by the Complainant, under the heading entitled “nature of employment” the contract states that the fixed term is “subject to continued funding” and “satisfactory performance”.

A number of points arise in relation to the above-mentioned provisions. Firstly, and most significantly, the Respondent called no witnesses or provided no submission of any description in relation to either of the matters listed above. Secondly, it is not expressly stated that these matters are to be considered objective grounds to justify the renewal of a fixed term beyond the term set out in Section 9(2). Finally, I note that in the matter of Teagasc v McNamara FTD138, the Labour Court has held that the appropriate remedy for a reduction of funding is the potential redundancy of a fixed term worker. The criterion of “satisfactory performance” is not a matter related to a fixed term and cannot constitute an objective justification for the non-renewal of such a contract in any event.

Having regard to the foregoing, I find that the Complainant in entitled to a contract of indefinite duration by virtue of Section 9(2) and that no objective justification within the definition of Section 9(4) has been established to justify any further renewals. In such circumstances, I find the complaint to well-founded and the Complainant’s application succeeds.

CA-00049657-002 Complaint under the Unfair Dismissals Acts

Regarding this particular complaint, the Complainant alleged that her dismissal was unfair for the purposes of the impleaded Act.

In this regard, the Complainant opened correspondence from the Respondent dated 24th November 2021. This correspondence simply informed the Complainant that her contract was to expire on 1st January 2022 and that her final payment would be received one week previous, with the obvious implication that the Complainant’s employment was to be terminated on that date.

In evidence, the Complainant stated that the Respondent did not engage in any form of process or procedure prior to terminating her employment. She further outlined that on the date of her termination, the Respondent remained active as a going concern. Nonetheless, the Complainant confirmed that the organisation was subject to an external audit shortly thereafter, with the majority of staff being placed on lay-off. The Complainant confirmed that, to her knowledge, the Respondent entity had ceased operations in early 2022.

While this correspondence ostensibly refers to the expiry of the Complainant’s fixed term as the rationale for termination, it has been established in the decision above that the Complainant had been entitled to a contract of indefinite duration some years previously. In such circumstances, the fixed term of the Complainant’s contract is deemed to be void, and any termination based upon the same will be considered a dismissal by the Respondent as opposed to an expiry based on the passage of time. In addition to the foregoing, I note the most recent contract of employment opened by the Complainant was not signed by either party and did not contain any form of waiver in respect of complaints under the Unfair Dismissals Acts.

In circumstance whereby the Complainant was summarily dismissed by way of correspondence, without reference to any of the fair grounds of dismissal set out in the Act, I find that the Complainant was unfairly dismissed and, consequently, her application is well-founded.

CA-00049657-001 Complaint under the Redundancy Payments Acts

In circumstances whereby it had been determined that the dismissal of the Complainant was unfair for the purposes of the Unfair Dismissals Acts, her appeal under the Redundancy Payments Act is unsuccessful.

CA-00044037-001 Complaint under the Employment Equality Acts

I find that the Complainant was discriminated against and consequently, her complaint is well-founded.

Having regard to the totality of evidence presented, I award the Complainant the sum of €7,488.00 in compensation.

CA-00044037-003 Complaint under the Maternity Protection Acts 

I find that the complaint is well-founded and, consequently, the Complainant’s application succeeds.

While the subject matter of this complaint bears numerous similarities to the matter listed above, there is no statutory prohibition to both complaints being maintained in tandem. Nonetheless, in circumstances whereby an award of compensation has been made in respect of the above-mentioned matter, I find that it would be inappropriate to make a further monetary award in relation to the present matter.

CA-00049657-001 Complaint under the Protection of Employees (Fixed-Term Work) Act

I find that the complaint is well-founded and the Complainant’s application succeeds.

Regarding redress, the Complainant’s representative was careful to establish that the remedy sought in relation to this particular breach relates to the Respondent’s failure to award the Complainant a contract of indefinite duration and to continue to issue fixed-term contracts in contravention of the legislation.

Having regard to the foregoing, I award the Complainant the sum of €3,744.00 in compensation.

CA-00049657-002 Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. In circumstances whereby the Respondent had ceased operations, compensation is the most appropriate form of redress in this circumstance.

Regarding the calculation of said redress the Act provides that the same must be calculated with reference to the financial losses attributable to the dismissal. In this regard, Section 7(3) defines “financial loss” as,

“…any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973.”

In evidence, the Complainant accepted that approximately one month following her dismissal, the majority of the Respondent staff were placed on lay-off and were subsequently made redundant. In such circumstances, the Complainant’s financial loss arising from this complaint equates to one months’ salary of €1,248.00 and her statutory notice payment of €6,042.24- to a total of €7,290.24.

CA-00049657-001 Complaint under the Redundancy Payments Acts

In circumstances whereby it had been determined that the dismissal of the Complainant was unfair for the purposes of the Unfair Dismissals Acts, her appeal under the Redundancy Payments Act is unsuccessful.

Fixed-Term, Objective Justification, Maternity Protection