(Represented by the Migrant Rights Centre Ireland)
Thai Thanie Ltd.
(Represented by Sullivan Walters)
1.1 This dispute concerns a claim by Ms Maneewan Seesan that she suffered a discriminatory dismissalby Thai Thanie Ltd. on the ground of gender in terms of section 6(2A) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of the Acts.
1.2 The complainant referred her claim of discriminatory treatment to the Director of the Equality Tribunal on 25 September 2006 under the Employment Equality Acts 1998 and 2004. On 4 December 2007, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were sought and received from both parties and a hearing was held on 13 November 2008. Material requested at the hearing was received from the respondent on 5 December 2008
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that she is from Thailand and moved to Ireland in April 2001 and initially worked in a hotel in Kerry. From November 2002 she worked in a Thai restaurant in Dublin where she met a Thai woman (Ms McGinley) and they became friends. In 2005 she helped Ms McGinley to set up a restaurant in Mallow.
2.2 The complainant submits that Thai Thanie Ltd. opened a restaurant in Mallow in November 2005 and she started working there. The respondent applied for a work permit for the complainant which eventually arrived in April 2006. The complainant had no contract and worked approximately 60 hours per week. She was paid an agreed €400 per week net of deductions and was paid in cash by Ms McGinley’s daughter. The complainant’s husband was the chef.
2.3 The complainant submits that in or around February 2006 anew manager was appointed and after this she worked 6 days per week and somewhere between 40 and 50 hours per week.
2.4 In March 2006 the complainant realised she was pregnant and told the staff in the restaurant.
2.5 In April 2006 she asked the manager for 6 weeks leave for herself and her husband to go to Thailand at end of May. She submits that the manager said it was “fine” so she bought the tickets. One week later the manager told the complainant that he had spoken to the owner (Ms McGinley) and she had said that she could not allow the complainant and her husband to go at the same time and her husband would have to stay as he was needed in the restaurant. The complainant told the manager that the tickets had been bought and she could not get a refund. The complainant submits that during this conversation she was asked to sign a letter that the respondent was not responsible for anything that might happen to her or her baby at the restaurant but she refused to sign the letter.
2.6 One week later the manager told the complainant that things had been sorted out and they could both go on their six weeks leave. In the middle of May the complainant received wage slips for the first time in her employment with the respondent. The wage slips covered the period from 29 April to 31 June 2006 and showed an hourly rate €8. The wage slips for the weeks from 29 April to 27 May indicated that she worked between 38½ and 49 hours per week; whereas the five slips from 28 May to 31 June 2006 show that the complainant received holiday pay. The complainant submits this indicates that the respondent had agreed to the leave. The complainant went on leave on 29 May 2006.
2.7 The complainant submits that shortly before 29 June 2006 the Thai authorities contacted her and told her that the respondent had told them there was a problem with her job and they should not let her return to Ireland. On 29 June 2006 she received a letter by courier from the respondent which stated, “We are terminating your employment herewith”. The complainant’s husband received an identical letter.
2.8 On 10 July 2006 the complainant was able to return to Ireland as planned, when she was 6½ months pregnant, as she managed to get a fax from another Thai restaurant in Ireland saying she could work there. On 13 July 2006 the complainant wrote to the respondent requesting an explanation for her dismissal. As she got no reply she sent further letters on 21 July 2006 and 7 September 2006 but she was never given an explanation for her dismissal.
2.9 The complainant submits that as she was out of work within 16 weeks of her expected date of confinement she was refused state Maternity Benefit. She was able to start work again in Ireland after the birth of her child in March 2007.
2.10 The complainant submits that she dismissed because of her pregnancy and that this dismissal caused her immense stress and strain during the last trimester of her pregnancy and following the baby’s birth.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denies the allegations of discrimination and submits that the complainant was treated no differently than anyone else would have been in the same circumstances.
3.2 The respondent submits that Mr Beech made daily deliveries to the restaurant from February 2006, for another company. He started work as restaurant manager on 15 April 2006. The complainant was absent from work at this time and did not return until 22 April 2006. Furthermore it not until the middle of May that the manager became aware that the complainant was pregnant. The complainant only approached Mr Beech in May about taking leave at the end of May.
3.3 The respondent submits that when the manager discussed the request with the owners there was serious concern about the lack of available staff in the kitchen. The manager then told the complainant and her husband that if the complainant’s husband decided to take the leave and the restaurant needed kitchen staff during his leave then he would be replaced and his staff accommodation would have to be used for new members of staff.
3.4 The respondent submits that the complainant was not asked to sign a letter. They wanted the complainant to avoid certain duties and the manager stated he would type a letter stating the duties that they would request the complainant not to undertake whilst in their employment but it was never typed up because of the ongoing issues regarding the holidays.
3.5 The respondent submits that the manager never told the complainant that they could both travel to Thailand.
3.6 The respondent submits that both the complainant and her husband were dismissed because they insisted on taking 6 weeks leave very early in their employment. Both of them were treated in an identical manner for identical reasons. As such there was no discrimination because of her pregnancy.
FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant’s case is that she was discriminated against in relation to her dismissal by Thai Thanie Ltd. on the grounds of gender in terms of Section 6 (2) (g) of the Employment Equality Acts, 1998 - 2008, contrary to Section 8 of that Act. The complaint arises as the complainant was pregnant at the time of her dismissal and The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus¹found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive², even though there may be no male comparator. This is set out in section 18(1) (b) of the Employment Equality Acts, 1998-2008.
4.2 There are some discrepancies between the submissions of both parties and in the evidence given at the hearing by the complainant, her husband, a colleague working at the restaurant at the time of the incidents, the respondent (Mr McGinley) and the manager at the time. However, what was undisputed at the joint hearing is that the complainant and her husband requested six weeks leave and the manager initially gave permission for both of them to go on leave. When he discussed it with the owners they did not agree with the permission he had given and he then told the complainant and her husband that the owners had reservations about the complainant’s husband going and he risked being replaced if he did go. At no time was the complainant told that she could not go on leave. At this second meeting the manager had the discussion with the complainant about the duties she that she should not undertake whilst she was pregnant. The respondent was therefore clearly aware that she was pregnant.
4.3 This case centres on the complainant’s dismissal and Article 10(2) of EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite duly substantiated grounds in writing for the dismissal and the need to take this approach was put forward by the Labour Court in A Company and A Worker, ED/01/1“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.”
4.4 In this case the complainant and her husband were dismissed whilst on leave in Thailand in an identical manner and the respondent contends they were dismissed for identical reasons. There was evidence that the respondent’s husband was warned that he should not go on leave but I am not looking at his dismissal. When questioned as to why the complainant was dismissed at the same time as her husband the respondent asserted that because they were a couple they came together and lived in accommodation provided by the restaurant and therefore they “can’t sack one and not sack the other”. I therefore conclude that the respondent had no reason to dismiss the complainant.
4.5 The complainant was given no warning, either verbally or in writing, that the taking of leave was considered a disciplinary matter. She was dismissed whist out of the country and the respondent made efforts to ensure that the complainant would not be able to return to Ireland. This meant that they made the decision to dismiss the complainant without giving her reasons and denied her the opportunity of a disciplinary meeting or to be represented, or to appeal the decision. Furthermore, when the complainant did return to Ireland and requested the reason for her dismissal on three occasions the respondent did not reply.
4.6 In these circumstances I find that the respondent has failed to demonstrate that there were exceptional circumstances not associated with the complainant’s pregnancy for her dismissal.
I have investigated the above complainants and make the following decision in accordance with section 79 of the Acts. That the respondent did dismiss the complainant in a discriminatory manner on the grounds of gender in terms of section 6(2A) contrary to section 8 of the Employment Equality Acts, 1998 - 2008. In accordance with section 82 of those Acts I award the complainant €20,000 in compensation for the discriminatory treatment suffered.
This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
24 December 2008
Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88  ECR I-3941
Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions.
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breast feeding.
A Company and A Worker, Labour Court ED/01/1, Det No EED016