Labour Court Database
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File Number: EED934
Case Number: EEO9311
Section / Act: S27EE
Parties: L.S. CATERING LIMITED - and - A WORKER
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Subject:
Alleged unfair dismissal of a worker in contravention of Section 3(4) of the Employment Equality Act, 1977.
Recommendation:
5. Having heard the evidence of both parties the Court does not
find that there was a contravention of section 3(4) of the
employment equality Act 1977.
Accordingly the Court is not satistied that the complaint is well
founded. The Court notes that the employer is willing to
reinstate the claimant on production of a certificate of medical
fitness.
The Court recommends that the employee provide the necessary
certificate and accept the offer of reinstatement.
The Court is conscious of the diffidence the employee expressed
regarding taking up employment in a probationary situation. The
employer at some length indicated to the Court the extent of the
support it gave to staff and in the circumstances of this case the
Court recommends that the employer ensure that the employee on her
return to work enjoys the benefit of the support structures which
are available.
Division: MrMcGrath Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
EED934 ORDER NO. EEO1193
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: L.S. CATERING LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
A WORKER
SUBJECT:
1. Alleged unfair dismissal of a worker in contravention of
Section 3(4) of the Employment Equality Act, 1977.
BACKGROUND:
2. 1. The Company operates the restaurant in Clery's Department
Store, Dublin. The worker was employed on 29th September,
1992 as a general assistant, on a casual basis, with irregular
hours.
2. The worker informed the Company on 16th November that she
was pregnant. On 18th November, the worker attended hospital
with a threatened miscarriage. The worker provided a medical
certificate on 19th November, 1992 certifying her fit to work
as a waitress.
3. On 23rd November the worker slipped and fell while at work
and again attended hospital. The Company received a further
medical certificate which stated that the worker was not
suitable for her present duties and would require a change of
assignment. The worker sought alternative work from the
Company. The Company's response was that there was no
alternative work available.
4. The worker alleges that she was unfairly dismissed by the
Company on 23rd November, 1993. The Company claims that the
worker was certified as being unfit for work and it had no
alternative but to let her go until she was certified as fit
for work.
5. On 17th May, 1993 the worker submitted a complaint to the
Labour Court concerning a dismissal under Section 27 of the
Employment Equality Act, 1977. A Labour Court investigation
took place on 21st September, 1993 (the earliest date suitable
to both parties).
WORKER'S ARGUMENTS:
3. 1. When the worker had completed her probation she informed
her supervisor that she was pregnant. From then on, her
working conditions deteriorated (details supplied). The
Company required a certificate of fitness to work and another
certificate was requested when the worker suffered a
threatened miscarriage. The second medical certificate sought
to have the worker assigned to lighter duties for a period.
2. Despite the requests of the worker, the Company refused to
consider alternative positions or a lightening of her duties.
The Company let the worker go without notice because of her
pregnancy. The worker's job was her only means of support as
she was not entitled to any social welfare payments. The
dismissal caused her great distress and she has not been able
to secure a job since.
COMPANY'S ARGUMENTS:
4. 1. The Company rejects the argument that the worker was
dismissed for a pregnancy related reason. The Company could
not allow her to work unless she was medically certified as
being fit for work. The Company was not in a position to
offer the worker alternative employment as none existed. The
Company treated the worker in exactly the same way as it would
treat any staff member certified as being unfit for his/her
specific job.
2. The Company did not dismiss the worker. It was not
reasonable for her to conclude that she was dismissed merely
because she was unfit for her normal duties and that there was
no alternative work available. Over the 7 weeks of her
employment the worker was at all times treated fairly by her
employers. The worker's position is still available if she
provides a certificate of fitness to work.
ORDER:
5. Having heard the evidence of both parties the Court does not
find that there was a contravention of section 3(4) of the
employment equality Act 1977.
Accordingly the Court is not satistied that the complaint is well
founded. The Court notes that the employer is willing to
reinstate the claimant on production of a certificate of medical
fitness.
The Court recommends that the employee provide the necessary
certificate and accept the offer of reinstatement.
The Court is conscious of the diffidence the employee expressed
regarding taking up employment in a probationary situation. The
employer at some length indicated to the Court the extent of the
support it gave to staff and in the circumstances of this case the
Court recommends that the employer ensure that the employee on her
return to work enjoys the benefit of the support structures which
are available.
~
Signed on behalf of the Labour Court
Tom McGrath
_______________________
1st November, 1993 Deputy Chairman.
J.F./J.C.