EMPLOYMENT APPEALS TRIBUNAL
Employee - claimant
Employer - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan BL
Members: Mr T. L. Gill
Ms H. Henry
heard these claims at Galway on 4 October 2013
and 22 November 2013
Ms Catherine Connolly BL, instructed by Ms Aine Feeney,
Feeney Solicitors, Lismoyle House, Merchants Road, Galway
Ms Muireann McEnery, Peninsula Business Services,
Unit 3 Ground Floor, Block S, East Point Business Park, Dublin on the first day;
Mr Alastair Purdy, Purdy Fitzgerald Solicitors,
Kiltartan House, Forster Street, Galway on the second day
The determination of the Tribunal was as follows:-
The claimant began her employment with the respondent, which operates a nursing home with 60 residents, as a care assistant with an initial six-month probationary period on 27 December 2010 and was dismissed on 20 July 2011. Accordingly, the claimant did not have the requisite one year’s continuous employment at the time of her dismissal. She contended that she had been dismissed on account of the respondent becoming aware that she was pregnant, such that she was entitled to rely on Sections 2 (1) (a) and 6 (2) (f) of the Unfair Dismissals Acts, 1977 to 2007 whereby if the dismissal resulted wholly or mainly from her pregnancy there was no service requirement in order to pursue such claim. Accordingly, it fell to the claimant to show that her dismissal had resulted wholly or mainly from her pregnancy.
The respondent’s director of care (DC) conducted a first probationary meeting with the claimant on 24 March 2011. At this meeting items discussed were fire training, the induction checklist, infection control and the use of the clean/dirty linen trolley. The outcome of the meeting was that that DC felt that the claimant’s comprehension of English was poor and that she needed to understand why each task was carried out. A further meeting was scheduled for four weeks later.
Before this second probationary meeting DC met the claimant on 5 April 2011 to discuss four issues with the claimant:
- Leaving a patient unclothed in order to assist a colleague with another resident. Dignity and respect issues;
- Failing to toilet a resident after changing her into night clothes;
- Carrying an armful of dirty linen up the corridor in breach of infection control practice;
- Residents on a wing of the facility expressing dissatisfaction with the claimant’s attitude and level of care.
The claimant was told to improve her attitude towards her work and to follow policies and good practice.
The second probationary meeting with DC took place on 18 April 2011. At this meeting items discussed included weekend work, specific duties not carried out in the dining room and the main bathroom, and the claimant not understanding the rationale for her work. The outcome of the meeting was that the claimant appeared to be unable to work on her own initiative, as she had to be told what needed to be done. She was told that she needed to improve a lot more. The next meeting was to be six weeks later.
During May the claimant discovered that she was pregnant. She contended that on 19 May 2011 her partner (HP) and soon to be husband, who also worked for the respondent, told DC, during the meeting at which he was informed that he had successfully completed probation, that the claimant was pregnant.
The claimant was on holiday from the end of May and then on sick leave from 13 June 2011 to 27 June 2011. She stated on 13 June 2011, when she gave her medical certificate to DC that DC said to her “HP told me you are pregnant, is it true?” and that the claimant had confirmed that she was pregnant. She further stated that DC told her that “you shouldn’t go on sick leave when on probation”. The claimant had been due to attend a third probation meeting during the period of her sick leave. DC wrote to the claimant on 14 June 2011 to extend the probationary period by four weeks until 27 July 2011.
Prior to her return to work the claimant called to speak to DC on 24 June 2011. The claimant’s position was that she again told DC that she was pregnant. DC’s note of this meeting indicates that the claimant was looking to return to work on a part-time basis whereas DC impressed upon her that she was a full-time employee.
The claimant returned to work on 28 June 2011. On 18 July 2011 DC conducted a third probationary meeting with the claimant. DC questioned the claimant on her role. DC believed the claimant continually carried out bad practice, put the safety and the well-being of a resident in danger by not using a hoist on one occasion, and that her infection control techniques were unsafe. A minimum of three residents were unhappy with the claimant. After this meeting DC reviewed her notes and found the claimant’s explanations unacceptable. Issues had been raised with the claimant at previous probationary meetings and DC had expected an improvement in the claimant’s attitude to work. DC decided that the claimant was unsuitable for her current position and terminated her employment by letter dated 20 July 2011. It was the respondent’s position that at no stage before taking the decision to dismiss the claimant was DC aware that the claimant was pregnant.
On 21 July 2011 the claimant’s solicitor wrote to the respondent in order to lodge an appeal against the decision to dismiss the claimant with immediate effect and without notice. This appeal was heard by the proprietor of the respondent on 29 July 2011. At the beginning of the appeal the claimant asserted that she felt that she had been dismissed because she was pregnant. On 2 August 2011 the proprietor wrote to the claimant upholding the decision to dismiss and rejecting her appeal.
The Tribunal notes that there is a conflict of evidence in this case in regard to the knowledge or otherwise of the respondent about the fact that the claimant was pregnant. It was submitted by and on behalf of the claimant that she was dismissed wholly or mainly for reasons of pregnancy and this contention, on the evidence is rejected unanimously by the Tribunal. The earliest date by which, if the Tribunal accepts the claimant’s evidence, the respondent could have been aware that the claimant was pregnant was 19 May 2011 when HP met DC. By this time the claimant had undergone two probationary meetings in addition to the meeting of 5 April 2011. Whilst the Tribunal notes that the claimant had raised points in her own defence the fact remains that in any reading of the notes of those meetings it was very clear that the claimant’s probation was not going well. The notes of the final probationary meeting on 18 July 2011 contain no mention of the claimant’s being pregnant, neither did the claimant seek to suggest during her evidence to the Tribunal that this had been mentioned. The Tribunal notes that in the letter of 21 July 2011 from her solicitor, in which the claimant lodged her appeal against her dismissal, no mention was made of the claimant’s pregnancy. For all these reasons the Tribunal is satisfied that the respondent was not aware of the claimant’s pregnancy when DC took the decision to dismiss her. Accordingly, it must follow that the dismissal cannot have been wholly or mainly due to her pregnancy. It follows that the claimant did not have the requisite one year’s service required to pursue a claim under theUnfair Dismissals Acts, 1977 to 2007 and therefore there is no jurisdiction to hear that claim.
The evidence having shown that the claimant was dismissed without notice, and the dismissal did not result from the conduct of the claimant, the Tribunal awards €325-00, being one week’s pay, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal