THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by Gemma Forde, Charles Foley Solicitors)
Edward Zandi trading as Moonlite Cleaning Services Ltd
(represented by Kate Kennedy B.L. instructed by Ian Foley and Co. Solicitors)
Date: 3rd December 2013
Keywords: Employment Equality Acts, Gender, Discriminatory dismissal, Pregnancy, Correct respondent
1.1 The case concerns a complaint by Ms Jolenta Drabik that Edward Zandi trading as Moonlite Cleaning Ltd discriminated against her on the grounds of gender leading to dismissal contrary to Section 8(6)(c) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the Acts’].
1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on 19th January 2011. On 31st March 2011 she submitted a victimisation complaint. On 18th September 2013 in accordance with his powers under Section 75 of the Act, the Director delegated this case to me, Orlaith Mannion, 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. Submissions were received from both parties and as required by Section 79(1) of the Act a joint hearing was held on 2nd October 2013 The last piece of correspondence requested by me was received on 16th October 2013.
Summary of the complainant’s case
2.1 The complainant commenced employment with the respondent as a cleaner in 2006 on moving to Ireland from Poland. She describes Mr Zandi as her mentor. When she came to Ireland, she had very poor English and he encouraged her to educate herself. She followed his advice, worked hard on improving her English and she completed a Diploma in Supervisory Management in GMIT. She was made a supervisor in 2007. Moonlite Cleaning had the contract for housekeeping of one of the largest hotels in Galway.
2.2 Ms Drabik became pregnant in 2010. She expected Mr Zandi to be surprised as her other children were teenagers but she also expected him to be happy for her and her husband as they had a friendly working relationship. However, when she told him in October 2010 she was shocked at his response: ‘I don’t let you work. No way – with a big belly. You will only be working three days’. She submits that she replied that her doctor said that she was fit to work up until her period of confinement. She submits that especially as a supervisor she says that she could not understand his objection to her working full-time. There was not much manual lifting involved and her doctor had no issue with her continuing to work. However, she felt that she had no choice and worked part-time until 27th December. From then on, she submits that she was not rostered to work at all.
2.3 When she queried this with Mr Zandi, she submits that he told her then that she was on Health and Safety Leave. She maintains that she was puzzled as she had not applied for this. However she states that she did not want to be without any income whatsoever (especially after Christmas) so she and Mr Zandi filled out the relevant Department of Social Protection form on 5th January 2011. She received a letter back querying her employment status as according to their records, she was no longer in the employ of Moonlite Cleaning. She submits that Mr Zandi mended his hand and informed the Department that she was still working for him. She remained on Health and Safety Benefit for two months and from then on was on Maternity Leave. This payment was €217 which was even less than she was earning three days a week. She was also given a new contract stating that she was a cleaner rather than a cleaning supervisor. Her previous contract was permanent; this contract was a fixed term contract of one year and her hours on same were reduced from full-time to part-time.
2.4 She also submits that on 19th March 2011 (a day when neither she nor her husband were working) Mr Zandi called the staff together and informed them that she made a complaint to the Equality Tribunal about them also. Ms Drabik maintains that he suggested to them that they make a counter-claim as she was their supervisor.
2.5 Her baby was born with a birth defect and she initially intended applying for Carer’s Leave. However, it made more financial sense for her husband to take Carer’s Leave so she sought employment elsewhere – she is now the Accommodation Manager in an other hotel (working full-time).
Summary of the respondent’s case
3.1 As a preliminary issue, the respondent states that the incorrect respondent was named. The company Ms Drabik worked for was Moonlite Cleaning Services and that is the name on her payslips. In the ‘respondent’ box on the EE1 form the complainant named Edward Zandi. The respondent relies on @Resonance Ltd and Rachel Collins and Gardiner and Aruthan.
3.2 Mr Zandi agrees that Ms Drabik was one of his best supervisors. He does not deny that he described her as ‘his right-hand woman’ and they had a healthy working relationship.
3.3 Following the announcement of her pregnancy, he submits that she requested to work a three day week. She took two weeks Annual Leave and then returned to work on a part-time basis as, he submits, she intended to claim from the Department of Social Protection for the other days. When she realised that she would not earn as much, Mr Zandi maintains, that she sought Health & Safety Leave. He submits that he was aware that she had difficult pregnancies in the past so he was happy to accede to this. He states that he gave all his staff new contracts in January 2011. He does not deny that this contract stated she was a part-time Cleaning Assistant but stated her original contract in 2006 also stated she was a Cleaning Assistant. He also said to her that her terms and conditions could be discussed after she returned from maternity leave.
3.3 He submits that he was shocked when he found out that Ms Drabik had lodged complaints to the Equality Tribunal and the Rights Commissioner Service. On her request, he had given her husband a job and also previously given an advance of wages to her. However, despite his disappointment at the turn of events, he denies trying to influence other employees against Ms Drabik.
Conclusions of the Equality Officer
Preliminary issue – correct respondent
4.1 Where this instant case differs from the cases cited by the respondent is that ‘Moonlite Cleaning Services’ is specifically named in Part 8 of the form. Mr Zandi and his wife are the only directors of the company. Mr Zandi’s mobile phone number and the address of the company as per the Companies Record Office (which is also his home address) are also listed in Part 6 of the form. Ms Drabik was not legally represented at the time of filling out the EE1 form. Mr Zandi responded to all correspondence to the Tribunal and it was only the week before the hearing (presumably when a barrister was briefed) that this issue of the incorrect respondent was raised. I am satisfied that the respondent was on notice and that there was no breach of natural justice. In this I am guided by Hogan J in an appeal to the High Court of a Labour Court determination:
Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). …In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.[my emphasis]
Therefore, I am satisfied that this case is properly before me and I may proceed to investigate the substantive issue.
4.2 There are three issues for me to decide:
(i) whether the complainant was discriminated regarding her conditions of employment on the grounds of gender
(ii) whether the complainant was discriminatorily dismissed on the grounds of gender contrary to Section 8(6) (c) of the Acts.
(iii) whether the complainant was victimised within the meaning of Section 74 (2) of the Acts
4.3 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a female employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
4.4 Section 85A of the Act 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 was discriminated against. 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.
4.5 In a case where there was significant conflict between both versions of direct evidence, I must examine at the documentary evidence closely. Ms Drabik was working as a Cleaning Supervisor at €425 per week (which works out at €10.90 @ hour) and it was a full-time contract of indefinite duration. After Ms Drabik announced she was pregnant, she was given a part-time contract with a demoted title of Cleaning Assistant and a salary of €10.75 @ hour. This (written) contract was submitted as evidence. In the circumstances of this case, the documentary evidence is incontrovertible – Ms Drabik’s terms and conditions of employment were reduced after she informed her employer that she was pregnant.
4.6 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum. In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of 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 breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. (my emphasis)
The Labour Court has found that ‘only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that that the discriminatory dismissal did not take place.’
4.7 Dismissal, as defined in Section 2 of the Acts, includes constructive dismissal i.e. where the conduct of her employer the circumstances were such that it would be reasonable for the complainant to terminate her contract of employment. It is common case that for four years both parties had an excellent working relationship. In the Supreme Court Judgment Berber v Dunnes Stores Finnegan J has found that:
There is implied in a contract of employment a mutual obligation that the employer and the employee will not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.
I am satisfied that the actions of Mr Zandi damaged the relationship of trust and confidence between himself and Ms Drabik. Her working hours were reduced as soon as she told her employer that she was pregnant. She arrived back to work after Christmas to find that she had no hours on the roster at all. She was put on Health and Safety Leave (without consultation) which meant her weekly income was significantly reduced. I do not accept the respondent’s contention that the reduced hours was done at the complainant’s initiative or that there was any mutuality in the arrangement. She was also presented with a written contract which represented a demotion. Therefore, she is entitled to claim constructive discriminatory dismissal on the ground of gender and the respondent has failed to rebut the case.
4.8 Section 74 (2) of the Act states victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.9 Complaints of victimisation are taken very seriously by the Equality Tribunal as for the Employment Equality Acts to be effective, people must feel free to make complaints of discrimination without the fear of negative repercussions. Calling a meeting of employees to inform them that Ms Drabik had initiated legal proceedings was not prudent by Mr Zandi. I accept the complainant’s evidence that at this meeting other employees were encouraged to make a complaint of bullying against Ms Drabik. This is victimisation. It is to the credit of the other employees that they did not. Ms Drabik has established a prima facie case of victimisation and the respondent has failed to rebut it.
I have concluded my investigation of Ms Drabik's complaint and hereby make the following decision in accordance with Section 79(6) of the Acts. I find that:
(i) the respondent discriminated against the complainant regarding her conditions of employment on the grounds of gender
(ii) the complainant is entitled to claim constructive discriminatory dismissal on the grounds of gender
(iii) the respondent victimised the complainant within the meaning of 74(2) of the Acts.
In accordance with Section 82 of the Act, I order the respondent pay the complainant:
(a) €22,000 (the equivalent of a year’s salary) in compensation for the discrimination in relation to conditions of employment leading to dismissal
(b) €11,000 (the equivalent of six months salary) in compensation for the distress caused by victimisation.
The total award is redress for the infringement of Ms Drabik's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
 Labour Court Determination No. EED0311
 Equality Tribunal DEC-E2012-128
 Paragraph 17 & 18 Eleanor O’Higgins and University College Dublin and the Labour Court [2013 No. 21 MCA]
  ECR 1-3567
  ECR 1-04185
  ECR 1-3941
 Intrium Justitia v Kerrie McGarvey Determination No. EDA095
 Berber -v- Dunnes Stores Limited  IESC 10