Complainant

Respondent

Parties

Oliwia  Pietruczuk

Dental Care Brilliantsmile Limited Marinas Brilliantsmile

Representatives

John Greene PC Moore & Co Solicitors John Curan (BL), representative)  Emelia Pietruczuk (support to Complainant)

PB Cunningham & Co Tim Dixon, (BL) Representative

Patrick Cunningham, Solicitor

Marina Obrzut, Director, Dental Care

Brilliantsmile Ltd

Carla Hall (employee of company)

Ide Molloy (with Solicitors firm)

Michael O’Keeffe (BL)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059607-001

25/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00059607-003

25/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00059607-004

25/10/2023

The following are the claims attached to this case.

CA-00059607-01:  Complaintfor adjudication pursuant under Section 7 of the Terms of Employment (Information) Act, 1994

The Complainant stated she did not receive a statement in writing of her terms of employment.

CA-00059607-02:  Complaintfor adjudication pursuant under Section 8 of the Unfair Dismissal Act 1977.

The Complainant stated she was unfairly dismissed and had at least 12 months service.

CA-00059607-03:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998

The Complainant stated she has been discriminated against by reason of her Gender and Family Status. The Complainant stated the Respondent treated her unlawfully by discriminating against her and by victimising her and harassing her when she was pregnant.

CA-00059607-04:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998. 

The Complainant stated she was dismissed for a discriminatory reason or for opposing discrimination, namely her pregnancy.

The Complainant representative withdrew Claim CA-00059607-02 the case relevant to dismissal so only 3 claims are now being heard by the WRC. 

The Respondent accepted they did not issue the contract as required and therefore claim CA-00059607-01 pursuant under Section 7 of the Terms of Employment (Information) Act, 1994 will be considered for decision.

I note that the finish dates are being contested as the Employee states the employment ended on the 25 June 2023 and the Employer states 2 July 2023.

The Complainant representative, John Curan, BL stated the employee was paid €1,104 monthly for 9-1, these hours were reflected in her payslip and for the extra hours she worked outside of these hours that equated to €1,000 - €1,500 extra.  He stated the extra money was paid in cash and not through the books or her payslip and was not taxed.  They stated average pay was €2,000 - €2,500 approximately per month in total.

The Employer stated the Complainant was paid €12.00 per hour and her hours varied.

Complainant representative, Mr Curan stated that they had a preliminary issue regarding an alleged crime having been committed by the Complainant against her employer and they stated it was sinister tactics and there is no clarity of same other than mentioning the issue about money.  It was stated they were only made aware to the Complainant a few days before this hearing. He stated crime wasn’t raised as an any employment matter during her employment or prior to this case either.

They representative stated the complaint to Gardaí was only made in February 2024 after they made the claim to the WRC and after a mediation attempt failed.  They stated this was a penalisation after making the WRC claim.  They stated giving evidence about that matter would prejudice the Complainant in this case.

In relation to the claim regarding the Terms of Employment (Information) Act ,1994 as amended the Complainant stated she was not provided with a statement in writing of the terms of her employment by her employer Dental Care Brilliantsmile Limited, owned by Ms Marina Obrzut.  That is accepted to be the case by the Respondent.

The Employment Equality Acts, 1998 as amended the Complainant stated she was discriminated against on grounds of Gender (Pregnancy) /Family Status and was Victimised, Harassed and Dismissed by her employer.

The Complainant when giving evidence stated she was working for the Respondent for 3 years.  She stated there are five rooms and dentists do all types of dental work.  She stated she started working there as a trainee first.

The Complainant stated she was a receptionist and dental nurse and did cleaning.  She stated she also did teeth whitening also.

The Complainant stated she wasn’t qualified to be a dental nurse. She stated she has no other qualifications other than the Leaving Cert.  She stated she didn’t do any training courses in relation to any aspects of her job.

The Complainant stated she became pregnant and told her Manager, Marina in April 2023.  She stated that Marina said she was happy for her.  The Complainant stated her manager brought in replacement staff, Carla and Cynthia at that time. The Complainant stated she spoke to Marina in Polish also.

The Complainant stated that she asked Marina could she work her same hours while pregnant as she always did.  Marina stated no and they had texts between them to show she wasn’t getting her usual hours, the new staff were doing the hours instead.

The Complainant stated on 5 May 2023 she received a WhatsApp message after a missed call from her boss, Marina who asked her to go on maternity leave early so she wouldn’t lose Cynthia and Carla. 

She stated she replied saying she didn’t want to go until 26 weeks before baby which would be August. She stated Marina said she didn’t want to lose Carla so Oliwia’s hours were cut to facilitate her.  She stated both girls took her hours from May.

The Complainant stated on 9 June Marina stated in a text “you don’t have to come in as Carla will work”. She stated Marina said to her that her hours will be 1-4pm Monday to Friday i.e. only 3 hours and knew she was cutting her another day so she said it wasn’t fair to Marina in a text.

The Complainant stated she was paid via payslip for 20 hours but was then only working 15 hours so she had to give back money to Marina as she didn’t work enough hours.  She stated this shows her hours were cut.  She stated she has texts to back this up. 

The Complainant stated she was in homeless accommodation at this stage and found HAP accommodation and she asked Marina to confirm her wages in a letter so she could get the HAP but she didn’t do it.

The Complainant stated Marina then asked Oliwia to go online and not go into work but do the Facebook page for the clinic and get patients for her which is very difficult and she stated Marina said to do this instead of coming into the clinic.  She asked her what she would be paid to do this job and Marina did not confirm same and she asked could she stay doing her original job instead.

The Complainant stated 10 mins later Marina sent in the roster to the group chat and Oliwia was left off the roster and this was in July 2023.  She stated the other girls were rostered instead.

Oliwia stated another girl worked until the end of her maternity leave.

The Complainant stated she said to Marina that she needed to work until August and get a payslip before her maternity leave.

The Complainant stated she also asked would she get the same payment for doing Facebook job as in the clinic and she stated she wanted to work in the clinic until her maternity leave and if she wanted her to leave, she would have to give her reason in writing and she stated she was stressed by it.

The complainant stated at this stage she wasn’t rostered to work and was fired in July 2023 from her main job as far as she was concerned and was only told to set up a Facebook page online but she didn’t want to do that.  She stated she presumed she was dismissed at this stage even though she was only 4/5 months pregnant.

The Complainant stated that her Manager, Marina stated she had Carla working with her as she was worried about her.

The Complainant stated that Marina then said she could work with a specific dentist 2 days a week in the Clinic but that dentist only works 2/4 days a month only.

The Complainant stated that Marina said the same things on calls to her which was very upsetting.

The Complainant stated that Marina then asked her to work 6-9 hours per week on 5 July even though she wasn’t rostered the previous week.

The Complainant stated that on 17 July she asked her Manager, Marina via text if could she come to the clinic to use the stamp for her maternity form.   She stated she went into the office to get the stamp and got it done with Cristian.

The Complainant stated she worked extra hours and was paid cash and her regular hours were paid via payslip. She stated if she didn’t do her full hours in June or after her hours were cut, she had to pay her employer the difference back.

 Cross Examination by Respondent representative

Oliwia, the Complainant stated she thought she was fired at the end of June or start of July 2023 as she wasn’t rostered anymore after that.  She stated she wasn’t sure at the time of filling in the claim form but text messages show its from 2 July 2023.

The Respondent representative, Mr Tim Dixon, Barrister stated the Complainant decided to leave work on her own accord but the Complainant denied that.

The Complainant stated she was not unwell and was able for work and had a healthy pregnancy she just had two to three standard appointments at hospital. She stated she only had morning sickness at the start of her pregnancy.

The Complainant stated she emailed her Solicitor to confirm she wasn’t paid for July as she wasn’t working then.

The Complainant stated she was still doing some tasks while pregnant up to her hours being cut.

The Complainant stated she didn’t want to work online and instead wanted to stay working in the clinic. She stated she didn’t want her hours cut.

The Complainant stated she was employed on the 15 April 2021 initially part time and worked as a Receptionist, Dental Nurse and Cleaner.  She stated she was dismissed on the 2 July 2023.

The Complainant stated her earnings fluctuated.  She stated she worked four hours per day (€12 per hour) and that was reflected in the monthly payslip but she worked additional hours as well. She stated her monthly payslip was on average €1,104 net and in addition she was paid her additional hours on a fortnightly basis which averaged €1,000 to €1500 per month. She stated her total monthly remuneration was thus €1,104 as per the payslip + (€1,000 to €1,500 per month) per month and on average €2,104 per month. 

The Complainant stated she was supposed to work solely as a receptionist but was also required to work as a cleaner and was also required to assist the Dentists as a Dental Nurse. It was stated the Complainant worked hard and gave good service.  

The Complainant stated initially she was a patient in the clinic and it was then suggested she start “training “. The Complainant stated she was 18 years of age then.  She stated she was paid in cash and was told “that’s how they do it “.  She stated after 3 months she was given a payslip which did not reflect the total hours worked. She stated she opened the premises at 9.00 am and commenced reception work. She stated there was no official lunch break which she took at her desk.  She stated although without qualification or training or experience she was also required to assist the visiting Dentists who flew in from afar.   She stated after 4.00 pm the Complainant cleaned the premises, 5 rooms and a toilet.  She stated a dedicated cleaner was not employed by the company.

The Complainant stated on the 15 April 2023 she notified her employer she was pregnant. She stated her employer, Marina told her “She was happy for her”.  She stated at that point she had a due date of the 15 October 2023 and her last day of work was to be the 5 September 2023. The Complainant gave birth to twins on the 15 October 2023.

The Complainant stated on the 2 May 2023 she was told that two new girls were starting to work and that she would have to train them in.

The Complainant stated on the 5 May 2023 she was asked to go on early maternity leave by Ms Obrzut as she “did not want to lose Carla “.  She stated she then texted asking if Carla could come in and cover the Complainants shift for the next week. 

The Complainant stated she found herself being squeezed out and her work taken over.

The Complainant stated around the 29 May 2023 she was told her hours would be cut to only 3 hours a day.

The Complainant stated around the 9 June the Complainant asked for more hours but was refused.

The Complainant stated she protested explaining “it’s not really fair “.

The Complainant stated at the same time if there was an unexpected business surge she was asked to come in and help out.

The Complainant stated for the additional hours worked she sought to be paid through the books as she needed proof of income for a place to rent for HAP. She stated her pleas were ignored.

The Complainant stated on the 2 July 2023 there was a text proposing to transfer her to work ‘online’ which would have resulted in little or no income. She stated Ms Obrzut referred to how stressful the work was and asked the Complainant to “trust her”. She stated she knew the Complainant needed the money “but it’s not about the money in your situation “.  Ms Obrzut stated and explained that if the Complainant took up the offer to work online, she (Ms Obrzut) would “not feel so stressed “.

The Complainant stated although Ms Obrzut professed to be concerned about the Complainant no risk assessment was carried out.

The Complainant stated she explained she did not even own a computer to do the online job. The Complainant stated Ms Obrzut replied “Everybody works by phone; you don’t need computer to work online.” 

The Complainant stated she explained she would have to work until September and her due date was 15 October 2023.

The Complainant stated she asked how she is guaranteed that she will be paid for online work and that before she agreed she would need to talk to somebody and that she would rather stay in the clinic.

The Complainant stated in a separate Group Chat message on the 2 July 2023, Ms Obrzut distributed the Roster for the following week and had 3 names on it (Cynthia, Carla, Nicola) but not that of the Complainant. The Complainant stated she was not rostered after 2 July 2023 and was dismissed for reasons relating to her pregnancy.

The Complainant gave evidence on these events and provided documentation in support.

It was stated after the Complainant’s dismissal she had difficulty having her maternity benefit form signed by her employer.

It was stated by notification (Form EE2) sent on the 14 August 2023 the Solicitor for the Complainant made 39 different requests for information from the employer and there was no reply.

It was stated by letter dated 14 August 2023 the Solicitor for the Complainant wrote to the Respondent pointing out she had been dismissed for reasons related to her pregnancy and there was no reply.

It was stated by letter dated 14 August 2023 the Solicitor for the Complainant made a Data Access Request and there was no reply.

It was stated by letter dated 19 February 2024 the Solicitor made a complaint to the Data Protection Commissioner.

It was stated by letter dated the 19 February 2024 the Solicitor for the Complainant made further information requests and there was no reply.

The Complainant’s representative referred to the following legislation.  The complainant contends that her dismissal was on grounds of her Gender (pregnancy)/Family Status and constitutes discrimination contrary to sections 6 and 8 of the Employment Equality Acts.

Section 6(2A) of the Employment Equality Acts 1998-2007 provides:

“Discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

Section 8 of the Employment Equality Acts 1998-2007 states, inter alia, as follows: -

“In relation to-

1. Access to employment,
2. Conditions of employment,
3. Training or experience for or in relation to employment,
4. Promotion or re-grading, or
5. Classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

Section 8(6) defines conditions of employment as follows: - “Without prejudice to the generality of sub-section (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one-

The same treatment in relation to overtime, shift work, short time, transfers, layoffs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The Complainant’s representation outlined in relation to the burden of proof, the Complainant relies on O’Brien V Persian Properties [2012] ELR211 where it was held:

 In Poplawska v Moore Cleaning Services DEC_ E2013-096 it was determined the employer was aware of the Complainant’s pregnancy and “Consequently, the burden of proof shifts to the respondent to satisfy the Tribunal, on balance of probabilities, that there were exceptional circumstances unconnected with pregnancy or maternity, which discharge that burden.”

Further the Complainant relies on Article 10 of the Pregnancy Directive 92/85/EEC which provides that where a pregnant employee is dismissed during the duration of her pregnancy, ‘the employer must cite duly substantiated grounds for her dismissal in writing’.

In relation to dismissal on grounds of pregnancy, the burden of proof on the respondent has been stated to be as follows in A Company v. A Worker EED016, Labour Court, 2002:

“Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

It is submitted on behalf of the Complainant that the Respondent has failed to rebut the claim of Discrimination raised by the Complainant.

Further the Complainant relies on the decision of the Labour Court in Millett v. Shinkwin [2004] ELR 319, where the Labour Court stated:

 “…in a modern employment relationship, employees are entitled to expect that they will be treated with respect during the course of their employment. Employees generally, and pregnant employees in particular, are also entitled to expect that they will not be subjected to conduct which exposes them to physical or psychiatric injury including stress related sequelae.”

Without prejudice to the above it is submitted that in the event the Adjudicator decided the Complainant was not directly dismissed by the Respondent then she was constructively dismissed which is what occurred in the Shinkwin case where it was held;

“That the respondent conducted himself in relation to the claimant in a manner which would have provided reasonable grounds upon which the claimant would have been entitled to terminate the contract without giving prior notice to the employer, consequently the circumstances in which the claimant's employment came to an end could properly be classified as a dismissal within the meaning of s.2(1) of the Employment Equality Act 1998.”

The Respondent accepts the claim in respect of the Terms of Employment Information Act 1994 that they did not meet the legislations requirements in that regard.

It was submitted by the Respondent that there was no dismissal. The Respondent stated the Complainant refused to engage in a process of providing her with suitable work during her pregnancy. The Respondent stated the Complainant withdrew from contact with the employer as of the 17 July 2023.

It was submitted by the Respondent that there was no discrimination. The Respondent stated they were obliged to make arrangements to ensure a safe workplace for the Complainant due to her pregnancy. Despite not answering messages from the Respondent the Complainant visited her place of employment on 17 July 2023. The Respondent stated an envelope containing a sum of cash went missing from a room in which the Complainant had been in.

The Respondent stated there was no further contact from the Complainant.

The Respondent stated the Complainant was asked to train other people into her role. They stated this was reasonable in light of her imminent maternity leave and the summer vacation period.

It was submitted by the Respondent that the burden of proof to show a constructive dismissal remains with the Complainant. She has not given any evidence of the fact of dismissal and visited the workplace after her last day of work, without explanation.

The Respondent stated the reality is that the Complainant abandoned her employment. They stated she did not engage in reasonable attempts by the Respondent to accommodate her as a pregnant employee. They stated she had reasons unconnected with her treatment to abandon her employment.

The Respondent stated the Complainant was due to go on maternity leave in early September 2023.

The Respondent stated they were obliged to take the fact of the Complainants pregnancy into account in organising the work place and allocating duties. They stated it was also reasonable for the Respondent to anticipate the absence due to maternity leave of the Complainant.

Carla Hall an employee for the Respondent gave evidence under affirmation.  Ms Hall stated she started work on 1 May 2023 and she got trained in and 2 weeks in she knew she would be staying on.  Ms Hall stated she worked with Oliwia, the Complainant and they were together at the start.  Ms Hall stated that Nicola did cleaning in the afternoon. She stated that Oliwia was there before her at 1 o’clock and stayed on after her also.

Ms Hall stated the Complainant said she was pregnant and told her of no other health issues.

Ms Hall stated she worked with Oliwia together.  Ms Hall stated she remembered the 17 July and that she was there on that day.

On cross examination by John Curan BL, the Complainant representative, Carla Hall confirmed she got the contract she signed.  Ms Hall stated she got paid in cash for extra hours she worked.  She stated she left at 4 o’clock so she doesn’t know what Oliwia did after that.

Ms Hall stated she understood she was there to help until the Complainant went on maternity leave and would then be covering for her.

After taking an affirmation the Respondent representative, Marina Obrzut, then gave evidence and confirmed she was a director in the company.  She stated Oliwia, the Complainant was a good employee.  Ms Obrzut stated there was an issue between the Complainant and another staff member and she chose Oliwia over the other staff member at that time to stay on with her.

Ms Obrzut stated that the Complainant told her she was pregnant in April 2023.  She stated she advised the other staff not to upset Oliwia as she was pregnant.

Ms Obrzut stated she employed Carla Hall to cover for Oliwia’s maternity. She stated Oliwia asked her to work on her own but Ms Obrzut stated she couldn’t work on her own.

Ms Obrzut stated Oliwia was always rostered with Carla as far as she was concerned so she didn’t mean to leave her off the roster. She stated Oliwia asked her was she firing her and she said no. Ms Obrzut stated she didn’t hear from Oliwia again after that.

Ms Obrzut stated she heard from her husband that Oliwia came into the clinic on 17 July.  Marina stated she called Oliwia then and texted her from her personal phone as she didn’t answer her on her work phone.

Under cross examination by the representative for the Complainant he asked Marina Obrzut did she receive a letter on 14 August reference request for information and she confirmed she did. Ms Obrzut stated she got letter of 14 August reference alleging employee was dismissed. Ms Obrzut stated and confirmed she got the request for information reference Oliwia’s employment.

Ms Obrzut stated she was out of the country so passed the information to her Solicitors on 4 October 2023. She stated she never responded to any of those Solicitor letters at that time. She stated she didn’t know if there was a reply to them and the representative stated there is no reply on record for them.

Ms Obrzut stated she accepts she didn’t give Oliwia a written contract of employment.  She stated she thought a payslip would suffice. Ms Obrzut stated she accepted her work involved reception, cleaning and on the evening shift and the person in the evening cleaned.

Ms Obrzut stated the Complainant, Oliwia never assisted the dentists as a dental nurse. Ms Obrzut stated Oliwia did get training reference the job before she started. She stated Oliwia should not have taken X-rays.

Ms Obrzut stated she accepted she paid Oliwia in cash sometimes and paid her payslips for her regular hours.

Ms Obrzut stated Oliwia told her she could work on her own without Carla Hall. Ms Obrzut stated she said work was stressful so she wanted Oliwia to work with Carla and she didn’t want to lose Carla.

Ms Obrzut stated she was worried reference Oliwia’s health as it was a stressful job.  She stated she hadn’t heard about a pregnancy risk assessment.

Ms Obrzut stated she asked Oliwia to take earlier maternity leave but said she would pay her while she went out early.  She stated she only asked her and didn’t tell Oliwia to go early.  She stated she did not tell Oliwia to leave.  Ms Obrzut stated she was talking to her like family not as a boss.

Ms Obrzut stated Oliwia’s hours were not reduced after she became pregnant. She stated she didn’t know Oliwia’s exact hours as the girls agreed the hours among themselves.  She stated she didn’t cut her hours and Oliwia had control over her own hours.

Ms Obrzut stated she wanted Oliwia to work online for extra money.  Oliwia stated she didn’t want to do this. Ms Obrzut stated she presumed Oliwia would still work afternoons with Carla at that time as well as online work.

Ms Obrzut stated she did the roster without Oliwia but that occurred often that they worked without being on roster.

Ms Obrzut stated she was aware there was issues by Oliwia by receiving Solicitors letter in August and a potential claim.

Ms Obrzut stated she accepts the letter reference alleged allegations that was referred to guards was done the week after their mediation.

Ms Obrzut stated she went to the Garda Station in October 2023 as she didn’t want to upset her pregnancy at the time so waited until after that as a result.

The Complainant representative, Mr John Curan stated that is proof of victimisation for putting in her claim and put that to Ms Obrzut. Ms Obrzut stated she never put any disciplinary issues to the Complainant at the time of her employment.

Christian Conte took an affirmation and gave evidence.  He was the Manager of the clinic and is Marina Obrzut’s husband.

Mr Conte stated that he remembers the day of 17 July when Oliwia came in and he asked her why she was in and she stated she was there to get her maternity form stamped.  He stated they stamped the form and she left.

Mr Conte stated he asked the other staff members if Oliwia was in the GP room and he stated he had camera evidence to confirm she was in a GP room alone.

Under cross examination the Complainant representative asked him had she a valid reason to be in the clinic.  Mr Conte stated yes, she had reason to be there to get stamp signed. He stated he didn’t know about this in advance.  He stated Oliwia shouldn’t have been in the GP’s room at all.  He stated there were issues about the missing envelope from that room that day.  He stated he informed his wife Ms Obrzut about the incident and did no more.

The representative on behalf of the company concluded stating no dismissal occurred and they asked the Complainant to work hours in July which she didn’t reply to.  They stated the Complainant then stopped coming to work. They stated they were doing their best to accommodate the Complainant’s pregnancy even though she wanted to work alone as before.  Ms Obrzut stated she was unwilling to co-operate with them in this regard.  Ms Obrzut stated the Complainant was given a co-worker to help her.  They stated the issue reported to the Garda is a genuine matter not relevant to victimisation.  They also stated there is no obligation on them to reply to the Solicitor letters and they accept that the Terms & Conditions were not given.

Regarding the claim in relation to the Terms and Conditions of Employment there is no contract of employment in place and this was accepted by the Respondent.

 Regarding the remaining claims there is differing evidence presented in this case by both parties regarding many aspects of this case including the Complainants role, responsibilities, the circumstances of events that took place prior to Complainants departure and while she was working with the Respondent when she was pregnant.

In relation to the conflicting evidence regarding the Complainants wages I preferred the evidence of the Complainant and therefore take her monthly wage to be €2,250 based on their evidence.

I will now outline my findings regarding the remaining claims before me based on the oral and written evidence presented to me in relation to them.

In addition to section 6(2A) of the Employment Equality Acts 1998-2007, the complaint relies on the European Court of Justice decision in Dekker v. Stichting Vormingscrentrum voor Jong Volwassen [1990] ECR I-3941 where the European Court of Justice determined that unfavourable treatment as a result of or connected to pregnancy is direct Discrimination on the grounds of gender.

The Complainant suffered discrimination as prohibited by section 6 (2A) of the Employment Equality Acts 1998-2007 which included inter alia: reducing her working hours; marginalising the Complainant; failing to carry out a risk assessment; changing the Complainant’s duties; falsely reassuring the claimant; failing to roster the Complainant without explanation; dismissing the Complainant without explanation.  It is the contention of the Complainant that given her treatment by the respondent in the period after which they were made aware of her pregnancy, the Complainant’s discriminatory treatment was based wholly on her pregnancy.  I accept this to be the case based on the evidence presented in relation to this case.

The Complainant relies on the European Court of Justice Decision in Brown v. Rentokil 1998] ECR I-4185, which has been consistently applied in this jurisdiction where it was determined that the entire duration of pregnancy is a protected period during which both the Equal Treatment Directive 76/207 (now recast as Directive 2006/54/EC) and the Pregnancy Directive 92/85/EEC prohibit pregnancy related dismissal. In relation to Irish jurisprudence on this point, the Complainant points to A Company v. A WorkerEED016, Labour Court, 2002, where the Labour Court acknowledged that “pregnant workers are afforded special protection under the Equal Treatment Directive and Pregnancy Directive”.

In addition, the Complainant relies on Article 10 of the Pregnancy Directive 92/85/EEC which prohibits the dismissal of a pregnant worker from the beginning of their pregnancy to the end of their maternity leave in view of the harmful effects which the risk of dismissal might have on the physical and mental state of such women.

CA-00059607-01: ComplaintunderSection 7 of the Terms of Employment (Information) Act, 1994

 This claim has been accepted by the Respondent Dental Care Brilliantsmile Ltd that the Terms & Conditions were not given to the Claimant. I therefore find in relation that the complaint is well founded and the claim succeeds.

 CA-00059607-02:  Complaintfor adjudication pursuant under Section 8 of the Unfair Dismissal Act 1977.

The Complainant representative withdrew this claim.

CA-00059607-03:  Complaintunder Section 77 of the Employment Equality Act, 1998

It is accepted that the Complainant was pregnant during the time leading up to her departure from the company. Marina Obrzut stated she wasn’t aware of the issue reference her hours being reduced at the time and confirmed that even though she was not on the roster that they often worked without being on the roster.  I don’t accept this evidence and from the evidence her hours were given to new staff members.  There is also evidence presented to confirm that the Respondent requested her to change her role substantially and did not give her any guarantee of hours and financial reassurance that this would not negatively impact her, the contrary was the case.  The Respondent also did receive the Solicitors letter in August stating her alleged claim of pregnancy related to dismissal and that letter was not replied to.  Also, there is a requirement for the employer to formally contact Ms Pietruczuk if she failed to engage.

The Complainant stated she has been discriminated against by reason of her Gender and Family Status. The Complainant stated the Respondent treated her unlawfully by discriminating against her and by victimising her and harassing her when she was pregnant. I find that to be the case in this situation.

CA-00059607-04:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998. 

The Complainant stated she was dismissed for a discriminatory reason or for opposing discrimination, namely her pregnancy and said she was dismissed by not putting her on the roster.  They say she was in effect also constructively dismissed due to hours cut and trying to put her out of the clinic all due to her pregnancy.   I accept that she was in effect dismissed as she was not put on the roster and was told her role was no longer there and she was to do an online Facebook sales role which she had no training for and no commitment of hours or financial security in relation to her wages.

CA-00059607-01:  Complaintfor adjudication pursuant under Section 7 of the Terms of Employment (Information) Act, 1994

The Complainant stated she did not receive a statement in writing of her terms of employment.

The Respondent accepted they did not give the Complainant a contract as required by the legislation therefore Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Section 27 of that Act, I therefore award her €2,500 euro.

CA-00059607-02:  Complaintfor adjudication pursuant under Section 8 of the Unfair Dismissal Act 1977.  The Complainant representative withdrew this claim.

CA-00059607-03:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998

The Complainant stated she has been discriminated against by reason of her Gender, Family Status. The Complainant stated the Respondent treated her unlawfully by discriminating against her and by victimising her, and discriminating against her and harassing her when she was pregnant.

Section 77 of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaints in accordance with that Act.  I find that the claim is well founded based on the evidence provided therefore I order the Respondent to pay to the Complainant compensation of €7,500 as a just and equitable redress for the distress she has experienced through discrimination.

CA-00059607-04:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998.  I find the Complainant was dismissed due to her pregnancy and therefore I award her €10,000.