ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049967

Parties:

Complaint:

Date of Adjudication Hearing:  17/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the UnfairDismissals Acts, 1977 - 2015, following the referral of the complaint  to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that she was unfairly dismissed on ground of pregnancy.   Dismissal is in dispute.

Summary of Complainant’s Case:

The Complainant gave evidence on affirmation.  She stated that she worked for the Respondent as a Dental Nurse from 31st January 2013.  She advised the Respondent on 20th November 2023 that she was under Doctor’s advice to cease work for the foreseeable future and she submitted a certificate covering her absence to 1st January 2024.  Shortly after that she was diagnosed with a serious pregnancy complication.  She received a message from the Respondent on 22nd November asking her to return her uniform and keys.  She discovered that her employment status had been terminated on Revenue.ie. with effect from 10th November 2023.   When she received a message from the Respondent on 27th January 2023 asking her to confirm if she no longer wished to be employed, she responded that she understood her employment had been terminated per Revenue.ie

Summary of Respondent’s Case:

The Accountant for the Respondent gave evidence on affirmation.  He stated that the Respondent had no notification of the Complainant’s pregnancy so therefore they could not be accused of terminating her employment for reasons connected with pregnancy.  The medical certificate received did not cite reasons for her illness.  The Respondent required a dental nurse to take the Complainant’s place while she was out sick and that is why she was requested to return her keys. 

A written submission received from the Respondent prior to the hearing stated:

In relation to the end date of her employment being recorded on Revenue.ie. the Respondent wishes to clarify “that there has been no official communication from our end indicating such action. It would be premature to assume this without explicit confirmation. We are currently investigating how this error appeared on Ms. Gilbert's myAccount page. However, we want to emphasize that we never intended to terminate her during a medical leave period. We've requested that Ms. Gilbert hand over the uniform and practice keys to the replacement cover we've hired. In her email, Ms. Gilbert mentioned she has to "cease from work for the foreseeable future," so we felt it was reasonable to ask for the keys to the practice to be returned. We haven't received any notification regarding Ms. Gilbert's pregnancy, and the medical certificate for the six- week period did not mention it either. In fact, the medical certificate we enclosed in our previous letter did not specify Ms. Gilbert's medical condition or her unfitness for work. We believe this medical certificate does not comply with current legislation as it fails to state Ms. Gilbert's unfitness for work. After the expiration of the medical certificate, we inquired twice about Ms. Gilbert's intention to return to work, receiving evasive responses both times. We never received another medical certificate or any indication of the period Ms. Gilbert considered for her return to work. This indicates that we never regarded Ms. Gilbert's employment as terminated. We are genuinely surprised by these developments and believe that if there were any doubts about her employment status, a simple question could have clarified our position, which is that Ms. Gilbert is still employed at our practice. Ms. Gilbert took no steps to clarify her status and provided no response when asked twice about her return to work. While we are deeply disappointed by this lack of communication, we remain open to the possibility of reconciliation should Ms. Gilbert express a desire to return to work.”

Findings and Conclusions:

Section 6 (2) of the Unfair Dismissals Act 1977 (as amended) provides:

(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.

In this case, the Complainant submitted a medical certificate covering the period 20th November 2023 to 1st January 2024.  Communications between the Complainant and the Respondent demonstrate that the Respondent tried from the end date of that certificate to ascertain if the Complainant was returning to work.  The Complainant advised that as far as she was aware her employment had been terminated per the Revenue.ie site.  The Respondent contends this was a mistake.  I note the supposed date of termination on the Revenue site was 10th November 2023.  As the Complainant did not go on sick leave until 20th November 2023, I accept the Respondent’s evidence that this was an error.  I note the Respondent’s evidence that they had no knowledge of the Complainant’s pregnancy and this was not on the medical certificate.  The Respondent, not having prior knowledge could not have dismissed the Complainant for matters relating to her pregnancy.  The whole situation here was one of miscommunications.  The Complainant originally advised that she would have to cease work for the foreseeable future, and then did not confirm her intention to return to work when asked on a number of occasions from the time her sick leave certificate expired.

I find her complaint of unfair dismissal to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint  in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided that the complaint is not well founded.

Dated:   28-05-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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