THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 096
Ms Olga Seniv
(represented by Mr Hugh Byrne, B.L., instructed by Keans Solicitors)
Tamem Michael Bridal Ltd
File Reference: EE/2007/511
Date of Issue: 11th June 2010
1.1. The case concerns a claim by Ms Olga Seniv that Tamem Michael Bridal Ltd discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of terminating her employment upon return from maternity leave, while her replacement continued to carry out her former duties.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 24 September 2007. A submission was received from the complainant on 17 September 2008. A submission was received from the respondent on 24 October 2008. On 13 November 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 9 June 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she started working for the respondent in November 2004. In September 2006, the complainant went on maternity leave. When she contacted the respondent on 17 May 2007 in anticipation of returning to work on 21 May 2007, she was informed that the respondent was not sure whether there was work. When the complainant contacted the respondent again on 21 May 2007, she was told that the respondent would not take her back because they had somebody else. When the complainant called to the respondent's premises on 22 May 2007, she saw another person doing her job. The complainant was informed that her replacement was very good and that she would not be taken back.
2.2. The complainant furthermore states that she was told that the other person had no small children or words to that effect.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant. It points out that the complainant's statutory maternity leave started on 8 September 2006 and ended on 8 March 2007. In early March, the respondent attempted to contact the complainant, but to no avail. In mid-April, the complainant and her husband contacted the respondent and asked the respondent to write a letter, a copy of which was attached to the complainant's submission, which states that the complainant would be on maternity leave until 21 May 2007. The respondent states that the complainant and her husband asked the respondent to sign the document, for the purpose of the complainant obtaining her maternity allowance until May 2007. The respondent facilitated this request.
3.2. According to the respondent, the complainant on that occasion expressed the wish not to return to work, because she did not wish to leave her newborn daughter in the care of her husband. The respondent then undertook to help the complainant find work closer to home to avoid the three-hour daily commute to the respondent's premises.
3.3. Between April and May 2007, the complainant's husband made several threatening phone calls to the respondent to press the respondent to permit the complainant to return to work. It is the respondent's case that it was the complainant's husband who wanted his wife to return to work for the respondent, rather than the complainant herself.
3.4. With regard to the complainant's contention that another person carried out her work, the respondent states that the complainant had been trained to perform the duties of a "presser", who works the final stage of garment preparation before despatch. On the day of the complainant's visit, a machinist was performing presser duties, but the respondent disputes that another person had been hired in lieu of the complainant.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of gender, by reason of her pregnancy and maternity leave, within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. There is no dispute between the parties that the complainant did not return to her employment with the respondent after her maternity leave ended. Accordingly, I find that a prima facie case has been established, and it is for the respondent to rebut the presumption that the termination of the complainant's employment was not a discriminatory dismissal, by discriminatory selection for redundancy or otherwise, which was connected to her pregnancy or maternity leave.
4.4. The respondent submitted three different arguments in defence:
(i) The complainant did not contact the respondent about her return to work in March 2007, despite several attempts to contact her, and therefore resigned from her employment by way of breach of her contract;
(ii) The complainant effectively resigned her position by telling Ms Michael, then owner and director of the business, that she did not want to return to work and would prefer to look after her baby.
(iii) It was not possible for the respondent to take the complainant back because there was no work for her to do, due to a downturn in business.
4.5. The complainant's statutory maternity leave, which was five months (20 weeks) at the material time, lasted from 15 September 2006 to 15 February 2007. Her daughter was born on 17 October 2006. The complainant attempted to return from maternity leave in May 2007.
4.6. Regarding the time differential between February and May, evidence between the parties conflicted: According to the complainant, she was told to remain on maternity leave until her daughter was six months old. She stated in evidence that she called to the respondent's premises in December 2006, to show her co-workers the baby and to enquire after her work permit, and to discuss her return to work, and that 17 April, the day her daughter was six months old, was mentioned as a date for her to return to work. The complainant disputes being contacted by the respondent on her mobile phone in March 2007. According to the complainant, she called to the respondent's premises on 17 April and was again welcomed. She asked the respondent to stay at home for another month because of the baby. A return to work date of 21 May was agreed, and that the complainant would contact the respondent beforehand. The complainant stated that she phoned the respondent on 17 May and was told there may be no work for her. When the complainant called to the respondent's premises on 21 May, there was no work for her to do and she left. She further stated that Ms Michael told her a Polish woman had been taken on to do her work, and she saw a woman whom she did not know do work she used to do. She then assumed that this was the Polish woman.
4.7. The respondent disputes the existence of an agreement that the complainant's maternity leave would have lasted until April 17. According to the respondent, the complainant's maternity leave was either the statutory leave, or six months. (The respondent advanced both of these arguments.) The respondent further sought to argue that either, it would have taken the complainant back in March 2007 because it was her right to return to work, or because it would have had work for the complainant, which had dried up when she attempted to return to work in May.
4.8. The respondent accepted that a meeting between the complainant, her husband and Ms Michael had taken place on 17 April 2007, and Ms Michael accepted that she had issued the complainant with a hand-written note on headed letter paper, stating that the complainant's maternity leave would end on 21 May 2007. According to Ms Michael in direct evidence, she only furnished the complainant with this letter to allow her to continue to draw her maternity benefits. Ms Michael stated that she felt she had made a mistake in doing so. She also sought to claim that the complainant's husband had bullied her into writing it, but did not substantiate this allegation further.
4.9. Regardless of these views on the matter on the part of the respondent, I find that the hand-written note by Ms Michael from 17 April 2007 is the strongest evidence that the respondent did not, at that point, consider that the complainant had terminated her employment with them by way of breach of contract, and I do not find the respondent's assertions in this regard to be credible.
4.10. I am turning now to the respondent's argument that a conversation between the complainant and Ms Michael, to the effect that the complainant did not want to return to work because she did not want to leave her baby, constitutes a resignation from her employment. The complainant disputes resigning from her employment with the respondent at any time, either orally or in writing. Furthermore, the complainant pointed out that not only her income, but also her work permit and by extension, her ability to reside legally in Ireland, were dependent on her continued employment with the respondent, since the work permit (a copy of which was furnished in evidence) was issued to the respondent and not to the complainant.
4.11. I prefer the complainant's evidence and argument in this matter. I do not accept that a conversation in which the complainant may have expressed misgivings about leaving her young child, or concerns about childcare arrangements, constitute a resignation from her employment with the respondent.
4.12. In terms of a possible termination of the complainant's employment for reason of redundancy, the respondent argued that the garment manufacturing business in which it operated was a very volatile business environment, and that it often happened that staff had to be let go or put on part-time on short notice. However, two of the respondent's employees were present as witnesses, one of whom had 14 1/2 year's service with the respondent, and the other one had 15 years service. In other words, the respondent succeeded in keeping valued staff despite the ups and downs of business. The respondent further confirmed, in response to a question from counsel for the complainant, that the complainant was a valued member of staff and very good at her duties. In terms of a replacement for the complainant, the respondent disputed hiring anybody, and stated that the complainant's presser duties were distributed between all staff. However, in response to a direct question from the Tribunal, the respondent confirmed that the work which the complainant used to perform continued to be performed in the business.
4.13. From all of the above, I am not convinced that a genuine redundancy situation existed with regard to the work performed by the complainant, even if the complainant's prospective return to work coincided with a period of slow business. I also note that this period of slow business occurred before the current recession, and that despite the recession, the respondent continues to trade, although I also note that all staff are currently on part-time due to the current challenging business environment.
4.14. In summary, I find that none of the arguments which the respondent sought to advance in its defence stand up to closer scrutiny, and are not supported by evidence. Accordingly, the respondent has failed to rebut the prima facie case of discriminatory dismissal on the ground of gender which the complainant has established. The complainant is therefore entitled to succeed.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Tamem Michael Bridal Ltd. discriminatorily dismissed Ms Olga Seniv on the ground of gender by not permitting her to return to work after her maternity leave, pursuant to S. 8(6) of the Employment Equality Acts 1998-2008.
5.2. I therefore order, pursuant to S. 82(1) of the Acts, that the respondent pay the complainant €20,000 for the effects of the discriminatory dismissal. This represents approximately one year and eight months of the complainant's annualised salary for the year 2006 and reflects the seriousness the Tribunal and other employment rights bodies attach to violations of women's maternity rights. The award is not in the nature of pay and therefore not subject to tax.
11 June 2010