Equality Officer Decision No: DEC-E/2011/045
Okr Group Ltd. t/A Burgerking
File No: EE/2007/494
Date of issue: 8 March, 2011.
Headnotes: Employment Equality Acts, 1998- 2007 - sections 6&8 - gender -discriminatory dismissal - pregnancy - prima facie case
This dispute involves a claim by Ms. Anita Jakuskina that she was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998-2007 and contrary to section 8 of those Acts when she informed the respondent that she was pregnant in early March, 2007.
2.1 The complainant commenced employment with the respondent as a Crew Member in October, 2006 and was engaged on cleaning duties at the respondent's branch at Tallaght, Dublin. She states that in early March, 2007 she informed the Branch Manager (Ms. J) that she was pregnant and that a week later Ms. J dismissed her. She submits that this termination of her employment constitutes discrimination of her on grounds of gender contrary to the Acts. The respondent rejects the complainant's assertion that it dismissed her and states that the complainant resigned from its employment of her own volition on 11 March, 2007.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 14 September, 2007. In accordance with his powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 26 October, 2010, the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint was scheduled for 10 January, 2011. However, the complainant's solicitor (she was represented at the time) sought an adjournment of the Hearing as it was encountering difficulty obtaining instruction from her. The adjournment was granted and the Hearing was rescheduled for 3 March, 2011. In the week prior to the rescheduled Hearing the solicitor on record informed the Tribunal it was no longer representing the complainant. I was satisfied that the complainant had been notified of the Hearing arrangements and I proceeded as scheduled. The Hearing took place as arranged.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she commenced employment with the respondent as a Crew Member at its branch in Tallaght, Dublin around 9 October, 2006. She adds that during her period of employment she was primarily engaged on cleaning duties in the public areas of the branch. She further states that she was employed as a Permanent Part-time employee working a varied number of hours (between 20-39) each week as necessary. She adds that she was never advised by any of her Supervisors or the Branch Manager that her performance or standard of work was problematic. The complainant states however, that this changed after she informed the Branch Manager (Ms. J) on 3 or 4 March, 2006 that she might be pregnant. She further states that when she reported for duty on 7 March, 2007 (the first day she was rostered after she had spoken with Ms. J) she (Ms. J) started to check her work on a more regular basis - every forty minutes or so - and that such scrutiny was unusual and unreasonable given that she was never scrutinised to that level before she had spoken with Ms. J. In the course of the Hearing the complainant stated that although it seemed to her that Ms. J was over checking her work she (Ms. J) never criticised her for any under performance.
3.2 The complainant states that Ms. J spoke with her at the end of her shift on or around 11 March, 2007 and told her that "whether or not you are pregnant you must perform your duties" and that as she was not doing so she was firing her. The complainant adds that she told Ms. J she was rostered for the next week and asked if she had to come to work. The complainant adds that Ms. J initially said she (the complainant) did not have to report for duty but later changed her mind. The complainant states that she reported for duty the next week as rostered and that her last day of employment was 18 March, 2007. Finally, the complainant rejects the respondent's assertion that she resigned her position of her own volition.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It states that Ms. J became aware from work colleagues of the complainant that she (the complainant) might be pregnant. It adds that Ms. J approached the complainant on 3 or 4 March, 2007 and asked her if she was pregnant. The respondent states that Ms. J did so because there were two other employees in the branch who were also pregnant at that time and she wanted to ensure that she would be able to accommodate them following a health and safety risk assessment. The respondent (Ms. J) states that the complainant informed her she thought she was pregnant and that she was going to the doctor to have the matter confirmed. The respondent (Ms. J) states that the complainant never subsequently confirmed whether or not she was pregnant before her employment ceased.
4.2 The respondent rejects the complainant's assertion that her performance was never discussed with her by members of the Branch Management. It states that Ms. J raised issues of performance and conduct with her on nineteen documented occasions during her period of employment. In the course of the Hearing Ms. J stated that she spoke with the complainant on these occasions and agreed that the nature of the incidents ranged from low to high in terms of seriousness. She adds that some of them warranted the operation of the respondent's Disciplinary Policy but she did not invoke the Policy - she could offer no explanation for her failure to do so other than to say that it was her practice to give people the chance to improve. Ms. J adds that in this regard she informed the complainant that is he needed help at any stage all she needed to do was ask - the complainant never availed of this offer. The respondent rejects the assertion that Ms. J started to over check the complainant's work. It states that Ms. J merely carried out her normal duties of checking the entire branch in a systematic manner called "travel paths" and ensuring that the appropriate action is taken where problems are identified.
4.3 The respondent (Ms. J) states that the complainant left the dining area in a bad condition on 11 March, 2007 and other members of staff had to clean it up. Ms. J states that she spoke with the complainant in the hallway outside of her office at the end of the complainant's shift. She adds that when she attempted to explain to the complainant that it was not acceptable to leave the dining area in such a mess, she (the complainant) got very angry and informed her (Ms. J) that she was resigning with immediate effect. Ms. J states that she asked the complainant to remain on for a week (as she was rostered for the following week) to enable the respondent source a replacement for her and the complainant agreed to this. The respondent asserts that the complainant resigned of her own volition and rejects in the strongest terms the complainant's contention that she was dismissed.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the respondent dismissed the complainant and (ii) if the respondent dismissed the complainant, does the dismissal constitute discrimination of her on grounds of gender, in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 8 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 -2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment on the grounds specified. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.3 The first issue which I must address is whether or not the complainant was dismissed. The complainant asserts that Ms. J terminated her employment on 11 March, 2007. The respondent (Ms. J) strongly rejects this assertion and states that the complainant tendered her resignation. In circumstances where there is dispute between two parties over what happened at a particular time an Equality Officer must decide, on balance, which version of events s/he finds more compelling or credible. In reaching such a decision an Equality Officer is entitled to take into account all evidence presented by the parties as part of the investigation process. The first matter I propose to examine is whether or not the respondent was aware of the complainant's pregnancy. In a letter dated 28 August, 2007 from the complainant's legal representative at that time to the respondent, it is asserted in emphatic terms that the respondent was aware the complainant was pregnant at the time of the termination of her employment. In the course of the Hearing the complainant confirmed that this was not the case - she had only advised Ms. J that she thought she was pregnant after using a home-test kit and that she never advised the respondent that she was pregnant at any time before her employment ended. Indeed she stated at the Hearing that her pregnancy was not medically confirmed until after 18 March, 2007.
5.4 In the same letter referred to in the previous paragraph it is stated the complainant was "adamant" that up until the alleged events in early March, 2007 she had never had any complaints from any of her Supervisors or Manager about her performance or the standard of her work. The respondent disputes this assertion and furnished the Tribunal with contemporaneous notes of discussions Ms. J had with the complainant on nineteen occasions during her period of employment. These notes cover issues of performance, time-keeping and behaviour but include less serious issues and also indicate the complainant was informed that if she needed help she should ask for same. In the course of the Hearing Ms. J stated that she spoke with the complainant on these occasions and gave evidence of the content of some of these discussions. The complainant initially contested the veracity of these notes but subsequently confirmed that some of the discussions had occurred - in particular those where help was offered to her. I found Ms. J to be a credible witness who gave her evidence in a forthright manner and I accept, on balance, her evidence that these discussions occurred as set out by her. In the circumstances, I am satisfied that the complainant is incorrect in her assertion that she was never approached by the Branch Manager about her performance or standard of work.
5.5 The complainant contends that once she mentioned she might be pregnant to Ms. J on 3 or 4 March, 2007 her (Ms. J's) attitude toward her changed. She contends that Ms. J started to check her work every forty minutes. In the course of the Hearing the complainant was unable to give any specific examples of the alleged behaviour of Ms. J - indeed she stated that Ms. J did not admonish her during this period - and stated that she merely observed Ms. J walking around the dining area. Ms. J states that this is a routine part of her job and she is required to systematically check the dining area, food preparation area, counter area and toilets every hour in a process called "travel paths". I am satisfied that the tasks outlined by Ms. J are ones which are routine elements of her job and therefore it would be normal for her to be walking around the entire branch checking standards. Having carefully considered the evidence adduced by both the complainant and Ms. J, I do not accept the complainant's contention that Ms. J started to over check her work after their discussion in early March, 2007.
5.6 It is clear from the complainant's submission and her evidence at the Hearing that some issue arose on 11 March, 2007 which resulted in the discussion between her and Ms. J that took place in the hallway outside Ms. J's office at the complainant's shift. The complainant was vague as to the reason for this discussion. Ms. J stated that she had asked to meet with the complainant to discuss a performance related matter which had arisen from her failure to adequately clean the public dining area during her shift and on balance I am satisfied that this was the reason for the discussion. In her evidence at the Hearing Ms. J stated that during this discussion the complainant got angry and resigned from her employment whereas the complainant alleges she was dismissed by Ms. J. I cannot accept the complainant's assertion on this matter. Firstly, I note that Ms. J had failed to invoke the Disciplinary Policy- which she was fully aware of - against the complainant on at least three previous occasions which arguably should have warranted same and therefore I find it difficult to accept that she would summarily dismiss the complainant. Secondly, in the course of the Hearing the complainant displayed traits which, in my view, supports the assertion that she was capable of an angry outburst when confronted by Ms. J. Thirdly, I find it improbable that the complainant would agree to remain in work for a further week in circumstances where she had been dismissed moments earlier and believe that her agreement to do so is more consistent with working out a weeks' notice on resignation as set out in the respondent's Staff Handbook. Finally, the complainant agreed that there were two other employees who were pregnant at the same time as her and that the respondent did not dismiss or sanction them in any way.
5.7 In light of my comments in the preceding paragraphs I find, on balance, that the complainant resigned from her employment with the respondent on 11 March, 2007 and was not dismissed.
6. DECISION OF THE EQUALITY OFFICER.
In light of my comments in the preceding paragraphs I find, on balance, that the complainant resigned from her employment with the respondent on 11 March, 2007 and was not dismissed. It follows therefore that her complaint cannot succeed.
8 March, 2011