Employment Equality Acts 2000 to 2008
DECISION NO: DEC-2012-138
(Represented by Cathy Hamilton BL, instructed by
Redmond Next Door Off Licence Ltd.
Date of Issue: 24 October 2012 File No. EE/2010/694
Employment Equality Acts - gender - discriminatory dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Iwona Morzywoleck (hereafter "the complainant") that she was subjected to discriminatory dismissal by Redmond Next Door Off Licence Ltd. (hereafter "the respondent") on the grounds of her gender. The complainant claims that a few days after her return from maternity leave, her manager stated that there was no more work available for her and terminated her employment. The alleged discriminatory dismissal took place on 7 May 2010.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 17 September 2010 under the Employment Equality Acts. On 18 September 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 3 October 2012.
2. Summary of Complainant's case
2.1 The complainant is a Polish national and was employed by the respondent as a kitchen porter on 22 March 2008. Her hours of work were 12 - 4 pm, Monday to Friday. She went on maternity leave on 2 November, 2009 and returned to work on 1 May, 2010. She was given a weeks notice of her dismissal. She stated that in November 2009, while she was on maternity leave, a male eastern European national was given her job of kitchen porter. She asserts that following her maternity leave, she feels she was not wanted as she now had a baby to care for and the manager might be of the opinion that she could not work her usual hours or be available for overtime if required. She states that the business closed down in October, 2010 and all staff were let go. The complainant has provided copies of her payslips and P45 to the Tribunal. The complainant is alleging discriminatory dismissal by the respondent on grounds of gender.
3. Summary of Respondent's case
3.1 The respondent company is in liquidation and did not attend the hearing.
4. Conclusions of Equality Officer
4.1. I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court1, whilst examining the circumstances in which the probative burden of proof operates, held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4.2 Having questioned the complainant during the hearing, I find that as a witness, she was consistent in her testimony. I find her to be a credible and cogent witness. She also submitted documentary evidence in support of her claim including payslips, P45 and other documentation on her return to work following her maternity leave. I am satisfied that the respondent dismissed the complainant a few days after returning to work following her maternity leave. The respondent hired a male employee in November 2009, while the complainant was on maternity leave, to carry out the duties of kitchen porter and he was retained in the post. I am satisfied that the complainant has demonstrated prima facie evidence of discriminatory dismissal on the gender ground and in the absence of any arguments on behalf of the respondent to rebut the case, I find in favour of the complainant.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find the complainant was discriminated against by the respondent in relation to her discriminatory dismissal on grounds of gender, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 that the respondent pay to the complainant the sum of €6000, which is roughly equivalent to six months salary, for the distress suffered and the effects of the discrimination on her. In calculating the amount of the award, I am cognisant that the company went into liquidation on 4 October, 2010 and all employees were let go at this time. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
24 October, 2012
1 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.