EDA2655

ADE/24/71

DETERMINATION NO.  EDA2655

PARTIES:

DIVISION:

Chairman:	Ms Connolly
Employer Member:	Ms Bisiwe
Worker Member:	Ms Treacy

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00041468 (CA-00052472-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 Employment Equality Act, 1998 on 29 April 2024. A Labour Court hearing took place on 01 September 2026.

The following is the Determination of the Court.

DETERMINATION:

This an appeal by O’Regan Site Dumpers Ltd (“the Respondent”) against a decision of an Adjudication Officer in a complaint made by a former employee, Jekaterina Zaborovshaja (“the Complainant”), under the Employment Equality Act 1998. The Adjudication Officer held that the complaint was well founded and awarded the sum of €25,000.

1. Background to the Appeal Hearing

A Notice of Appeal was received by the Labour Court on 29 April 2024. An initial hearing of the appeal was held in Cork on 8 May 2025. Due to unforeseen resourcing issues in the Labour Court, no determination of the appeal issued, and the matter was reassigned for re-hearing by another Division of the Court. This is highly regrettable and the Court wishes to acknowledge the inconvenience posed to both parties.

A hearing date scheduled for 10 December 2025 was postponed due to the unavailability of the Managing Director of the Respondent on that date. A hearing on 11 February 2026 did not proceed, following an application made by the Complainant to seek a Correction Order to amend the name of the parties.  A Correction Order was lodged to the Court on 16 April 2026. A hearing of the appeal took place in Cork on 1 September 2026. The appeal is linked to TED2622 which was heard by the Court on the same day.

  2. The Appeal Hearing 

At the outset of the hearing the Court clarified with both parties what submissions and documentation each side intended to rely upon during the hearing, given extensive correspondence on file from Mr O’Regan. Mr O’Regan confirmed that he had all relevant documentation with him and that he was happy to proceed with the appeal. The Court heard submissions from both sides and sworn testimony from the Complainant and Mr O’Regan. Both parties confirmed that they were satisfied that they were given an opportunity to make and present all relevant submission evidence to the Court.

  3. Application to Anonymise the Determination 

The Complainant’s representative made an application at the close of the hearing to anonymise the parties’ names in the Determination published on the Court’s website due to the nature of the appeal which addresses the Complainant’s pregnancy and subsequent miscarriage. Mr O’Regan did not oppose the application at the hearing. While the Court recognises the sensitive nature of the matters raised in the appeal, it found no basis for granting the application to anonymise the determination. The application is denied.

  4. The Appeal before the Court

The Complainant contends that she was subject to a discriminatory dismissal on the grounds of her pregnancy. The Respondent refutes that allegation and contends that the Complainant was dismissed due to ongoing performance issues.

The Complainant commenced employment on the 16 January 2022. At a meeting on 13 June 2022, Mr O’Regan, the Respondent’s managing director, informed the Complainant that her employment would terminate with effect from 30 June 2022.

  5. Summary of Complainant’s Case:

The Complainant was dismissed at a meeting on 13 June 2022, one day after the Managing Director became aware that she was pregnant. The Complainant’s employment was terminated without any fair procedures. She was not provided with advance notice of the meeting or given an opportunity to question the reason for her dismissal. The sanction of dismissal was disproportionate. There was no appeal process.

The combination of the Complainant's dismissal, the timing of the Complainant's dismissal, and her pregnancy raise a prima facie case of discrimination on the ground of her gender. The Respondent has failed to show that the dismissal was for "exceptional grounds" not associated with the Complainant's pregnancy.

  6. Evidence of the Complainant

The Complainant did not receive a contract of employment and was not advised about a probationary period but understood that a three-month probation applied.

In April 2022, the Complainant informed her manager, Niall Luxford, about her pregnancy, as she had difficulty carrying out certain tasks such as heavy lifting. Niall Luxford is the most senior person in the company after the Managing Director. He congratulated her and told her not to tell the Managing Director that she was pregnant. The Complainant did not inform the Managing Director about the pregnancy directly.

The Complainant told other colleagues about her pregnancy. She told two colleagues who worked in administration of her pregnancy, one of whom was seven months pregnant and another, who was married to the Sales Manager, Dean Wells. The Complainant believes the Managing Director became aware of her pregnancy on 12 June 2022.

The following day, on the morning of 13 June 2022, the Complainant attended a hospital appointment for her 13-week scan. On attending work, she informed the Sales Manager, Dean Wells, that she could not do any physical work. A short time later, she saw Dean Wells speaking with the Managing Director. She witnessed the Managing Director become unhappy and he yelled at her “why come to work if you cannot do the job”. She left the premises with Dean Wells in the van to carry out duties. They went and met with a lawyer in the city about the Managing Director’s behaviour. 

On her return after lunchtime, the Managing Director called her into the office and handed her a letter informing her that she was dismissed. The Complainant was shocked. When the Complainant said that she was pregnant, the Managing Director did not respond. He did not withdraw the dismissal or make any attempt to explain that the dismissal was unrelated to her pregnancy.The dismissal letter was vague. It stated that there were 'many reasons' for terminating the Complainant’s employment without providing any specific details.  In the Complainant’s view, her pregnancy was a deciding factor in him deciding to dismiss her.

After the meeting, the Complainant was certified unfit to attend work by her GP.  The Complainant suffered a miscarriage, which was not connected to her workplace issues.Her last date of employment was 30 June 2022. The Managing Director later contacted her about a role. It was not the same position and she would be self-employed.

Under cross-examination, the Complainant agreed that all communications with the Managing Director were via voicemail and WhatsApp messages and nothing was ever documented. She accepted that the Managing Director advised her to look for another job in April, and she agreed to do so but denied that he indicated that she could be dismissed. The Sales Manager advised her to go to a solicitor on the date of dismissal.

  7. Summary of Respondent’s Case:

The Complainant was dismissed at the end of her probation period due to ongoing performance issues. The Respondent denies that the Complainant was treated less favourably on grounds of her gender.

The Managing Director, Mr Con O’Regan, gave evidence as follows.

Mr O’Regan started work as a sole trader in 1994 and established the Respondent company in 2001. The company is a small operation. As Managing Director, Mr O’Regan is responsible for hiring and firing staff.

The Complainant was not issued with a contract of employment. Mr O’Regan verbally told the Complainant that a three-month probation period applied.  There was a history of performance issues. Mr O’Regan advised the Complainant verbally several times that he was not happy with her performance. In April 2022, he told the Complainant that she should look for a job elsewhere and she agreed to do so.

In June 2022, the Complainant submitted a medical certificate to say that she could no longer carry out duties relating to certification. The medical certificate did not state that she was pregnant. The certification duties were the only aspect of the role that the Complainant carried out successfully.  Mr O’Regan sought advice from a solicitor and decided to dismiss the Complainant on the 13 June 2022. His evidence was that he made the decision to dismiss because of the medical certificate and the fact that her probationary period was coming to an end. He asked Lucas, the Parts and Services Manager, to draft the dismissal letter. 

Mr O’Regan was unaware of the Complainant’s pregnancy before he informed her of her dismissal at the meeting on 13 June 2022. While he was shocked, when she informed him of her pregnancy at the meeting, it did not change his view. The Complainant was dismissed for performance reasons as opposed to any connection or reason related to her pregnancy.  Mr O’Regan later suggested that the Complainant return to work for the company in a different role, but she did not accept the offer.

Under cross examination, Mr O’Regan said that he did not record performance conversations or write letters to employees about performance matters as he found that approach intimidating.  Since Covid, everything is carried out electronically. He does not “do paperwork” and preferred to communicate via WhatsApp messages. He had 900 WhatsApp messages with the Complainant. Mr O’Regan accepted that he did not notify the Complainant in advance of the purpose of the meeting on 13 June 2022, nor did he advise her that dismissal was in consideration.

Mr O’Regan understood that as the Complainant was pregnant at the time of the dismissal, she was protected by legislation. He also understood that he should have set out exceptional reasons for a dismissal where an employee is pregnant, but he did not want to demean the Complainant or unsettle her by listing all the reasons why he was dissatisfied with her performance.

Mr O’Regan said that he did not request the three witnesses from the company who gave evidence at the WRC hearing to attend the Labour Court hearing, as he felt his own evidence was sufficient. When asked about the WRC hearing where Niall Luxford was referred to as a manager, Mr O’Regan said that the Niall Luxford may have classified himself as a manager, but he was not a manager. The only other manager in the company was Lucas, who had worked for him for eighteen years and was the Parts & Services Manager. 

  8. Relevant Law 

Discrimination for the purposes of this Act.

6.— (1) 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 on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

…

(2A) Without prejudice to the generality of subsections (1) and (2), 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 85A (1) of the Act provides: -

85A.— (1) 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.

  9. Deliberations

The Complainant’s employment with the Respondent ended on 30 June 2022 by reason of dismissal. The claim of discriminatory dismissal is rejected by the Respondent.

Mr Con O’Regan, the Managing Director of the Respondent company, contends that he had no knowledge of the Complainant’s pregnancy before the dismissal meeting on the afternoon of 13 June 2022. That fact was disputed.

The Court accepts the Complainant’s uncontested evidence that she informed another colleague, Niall Luxford, about her pregnancy in April 2022, and that she informed other colleagues in the company about her pregnancy prior to 13 June 2022. The Court found Mr O’Regan’s evidence, that a Parts and Services Manager was the only other manager in the company, did not align with email correspondence dated 30 April 2025 in which Mr O’Regan confirmed to the Labour Court that three named colleagues would attend the forthcoming hearing into the within appeal. The three colleagues were cited as: Dean Wells -Sales and Finance Manager, Lukas Smymcka - Parts Manager, and Niall Luxford - Plant Manager. The Court prefers the evidence tendered by the Complainant that she informed management within the company of her pregnancy. An employee is not obliged to notify the Managing Director of a company of her pregnancy status to come within the protections of the Act.From the evidence presented, the Court is satisfied that the Respondent company was on notice of the Complainant’s pregnancy at the relevant time.

The Complainant was dismissed from her employment with effect from 30 June 2022. It is accepted that the Complainant was pregnant at the time of her dismissal (albeit she subsequently suffered a miscarriage). While the Respondent contends that the Complainant was dismissed due to performance issues, no documentary evidence was presented to support the contention that there were ongoing performance issues prior to the dismissal. The Court finds that these primary facts are sufficient to raise an inference of discrimination on the gender ground so that the burden shifts to the Respondent.

Where a prima facie case of discrimination is established, the onus of proving the absence of any discrimination rests with the employer. To rebut the inference of discrimination, an employer must present cogent and credible evidence to demonstrate that the dismissal was not connected to the Complainant’s pregnancy.

It is well established in law that less favourable treatment related to pregnancy constitutes direct discrimination on the gender ground and that, accordingly, women are to be afforded special protection from adverse treatment from the commencement of their pregnancy until the end of their maternity leave. Where a pregnant woman is treated adversely because of her condition the employer bears the burden of proving, on credible evidence, that such treatment was in no sense whatsoever related to her pregnancy.

In this case, the Respondent contends that the Complainant was dismissed because her probationary period was coming to an end and there were ongoing performance issues. 

From the evidence presented, it is unclear to the Court if the Complainant was subject to a three- or six-month probationary period. The Complainant said that she understood that a three-month probation applied, although she was never advised about any probationary period. Mr O’Regan said that he extended the Complainant’s probationary period from three to six months, although no documents were presented to support his contention.

The company, which is a small company, did not have a formal probation review process in place. Mr O’Regan’s evidence was that he did not record performance conversations or write letters to employees about performance matters as he found that approach to be intimidating and preferred to communicate via WhatsApp messages or voicemail. While Mr O’Regan said that many of the 900 WhatsApp messages that he exchanged with the Complainant addressed performance issues, no such evidence was presented to the Court to support this testimony. 

Mr O’Regan said that he made the decision to dismiss the Complainant in April 2022 but held off progressing that matter to allow her look for alternative work.For her part, the Complainant accepted that issues arose in April 2022 and that she agreed to look for another job. Her evidence was that she was not advised of other performance issues thereafter, or that her employment was at risk.

Mr O’Regan gave evidence that he took advice in June 2022, after the Complainant submitted a medical certificate to say that she was unfit to carry out certain duties.  He said that he made the decision to terminate her employment as the probationary period was coming to an end and there were ongoing performance issues.  The Court was not presented with any documentary evidence of ongoing performance issues up to this point. There was a complete absence of any documentary records to support the contention that there were ongoing performance issues.

It is accepted that the Complainant was not notified in advance of the dismissal meeting on 13 June 2022, or of the purpose of the meeting. Mr O’Regan informed the Complainant that her employment would end on 30 June 2022 and handed her a dismissal letter which stated as follows:

“Dear Jekaterina,

O’Regan Plat Sales has taken a decision, after going through the probationary reviews that you are not fit for the position. There are many reasons because

of which we have decided to terminate you from the job during your probationary period.

We tried to allocate you in different roles during your service., Regrettably, the results did not meet business expectations.

As you know we made a lot of meetings highlighting these issues.

We wish you the best for your future assignments.

We think you will do much better in a bigger organisation with strict managerial roles which may suit you beter.

Your last day of work will be 30.06.2022.

We will be processing your outstanding salary and your record of employment on the next scheduled payment date. Thank you.” (sic)

While the letter states that there were “many reasons” for the dismissal, no specific reasons are cited. The letter refers to “a lot of meetings” where issues were highlighted, yet no details were provided to the Court about such meetings or what issues were discussed at such meetings.

From the evidence presented the Respondent has not established to the Court’s satisfaction that the Complainant’s employment was terminated because of ongoing performance issues. 

When asked why he did not provide the Complainant with a letter stating the “exceptional reasons” for her dismissal, Mr O’Regan said that the last thing he wanted to do was to demean her or unsettle her by listing all the reasons why he was dissatisfied with her performance.

Having considered the submissions made and evidence presented, the Court finds that the Respondent company has not discharged the burden on it to show that the dismissal was for reasons unconnected with her pregnancy. Mr O’Regan’s contention that the Complainant was dismissed for performance reasons was not supported by any documentary evidence, nor was it corroborated by any other witness testimony from the Respondent company. Accordingly, the Respondent has failed to satisfy the Court that the Complainant’s dismissal was unconnected with her pregnancy.

The Court finds that the Complainant was subject to discriminatory dismissal when her employment terminated on 30 June 2022.  Accordingly, the Court finds that the complaint of discrimination on the gender ground is well founded.

Redress

Any award of compensation for the effects of acts of discrimination must be proportionate, effective, and dissuasive.  Based on the submissions and evidence tendered, the Court directs the Respondent to pay the Complainant €25,000 in compensation.

In making this award, the Court has taken account of the relatively short tenure of the Complainant with the Respondent company.

  10. Finding 

The Court finds that the Complainant was subject to a discriminatory dismissal on the gender ground when her employment was terminated on 30 June 2022.

The determination of the Adjudication Officer is affirmed. The Court directs the Respondent to pay the Complainant €25,000 in compensation.  The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AM	______________________
16/10/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Áine Maunsell, Court Secretary.