EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Mary Sweeney UD864/2013
-claimant MN424/2013
against
Fairbrother Childminding Limited T/A The Orchard
Childminding Service
-respondent
under
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 O. Madden B.L.
Members: Mr. J. Hennessy
Ms N. Greene
heard this claim at Portlaoise on 3rd June 2014 and 30th September 2014
Representation:
Claimant: Mr. David Gaffney, Sweeney, Solicitors,
Marlboro House, Marlboro Street, Cork
Respondent: Mr. Jim Waters, Waters & Associates, Solicitors,
Unit 1a, Hyde Court, Shaw Street, Dublin 2
Preliminary point:
The claimant’s case was that she did not have twelve months employment with the respondent but that she was dismissed for reasons of pregnancy and was entitled to bring a claim under section 6(2)(f) of the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 To 2005 was withdrawn from the outset.
Claimant’s case:
The Tribunal heard evidence from a witness for the claimant. BS who was the assistant manager at the time, learned of the claimant’s pregnancy much earlier than the respondent. RF and SD had asked her if she knew whether or not the claimant was pregnant. On the 25 April 2013 RF arranged a meeting with the supervisor JO’L. The witness also attended. The purpose of the meeting was to resolve issues between the claimant and her supervisor. JO’L was unhappy working with the claimant and indicated that the claimant would not take instruction from her. Other matters raised at the meeting included allegations that the claimant gave yoghurt to a child instead of soup, that she allowed a child nap when instructed not to, that the claimant had favourites ignoring other crying children and had on occasion roughly handled a child. An issue around nappy changes was also referenced. JO’L was threatening to leave her employment. A meeting was held later that day with the claimant. The witness informed the claimant that J O’L had made serious complaints. Each allegation was put to the claimant and she denied any wrong doing. She left the meeting very upset. A further meeting with RF, JO’L and the claimant took place. Although the witness did not attend she was informed of the outcome. It was agreed they would try harder to get on in the workplace. The witness learned from RF the following day that the claimant had requested she sign off on her work diary each day which was refused.
The claimant told the Tribunal she commenced employment with the respondent company on 27 August 2012. Her employment was largely uneventful up to an incident when a baby was picked up by her mother who noted that she needed a nappy change. Both she and JO’L were called to a meeting following that incident however neither party was singled out or blamed. The next incident occurred on the 23 April 2013 when JO’L picked up a child saying she was due a nappy change. The claimant was on yard duty at the time.
On the previous day BS had alerted her to RF’s suspicions about her pregnancy. RF asked her directly if she was pregnant and commented on her appearance. The claimant confirmed her pregnancy that day to her employer (RF). RF commented “I knew by looking at your face” and “I never had an employee pregnant before”. The claimant later learned that RF told staff and parents of her pregnancy.
The claimant first became aware of the allegations of neglecting children on the 25 April 2013. She was given no opportunity to view CCTV or read statements of complaint. The claimant believes she was dismissed because of her pregnancy.
The claimant during cross examination denied claims that she would not engage with parents. Nappy changes and sleeping charts were opened to the Tribunal. She denied raising her voice to JF. She confirmed that she did not get on well with JO’L and had little in common with her to discuss.
The claimant recalled being told that JO’L wished to resign. Her evidence was that while RF and JO’L had their meeting on the 25 April she was left caring for seven children. Had the respondent any concerns about her neglecting children she would not be left in this position. At the meeting with RF and JO’L later that day it was agreed that she would work in the kitchen area and cleaning while JO’L would work in childcare. A follow up progress meeting was arranged for the 4 May 2013 and she was informed a written warning would issue to her. The reason for the written warning was not fully explained to her. The following day she spoke with RF and requested she sign a daily diary. It was not a demand just a request and RF refused. RF never suggested that JO’L sign the daily diary. The claimant denied ever neglecting a child in her care and no evidence of such neglect was ever provided. She was never issued with a written warning but was instead dismissed from her employment.
Respondent’s case:
The Tribunal heard evidence from JO’L who is the present manageress of the Crèche. At the time the claimant worked there she was the room leader in the baby room. The babies in the room are between 5 months and two years. When the claimant joined at first she was quiet. She and the claimant split duties between themselves i.e. she did a week of feeding and nappy changing and then the claimant would do a week of feeding and changing.
The witness explained that it was not an easy going relationship with the claimant. The claimant had joined them in August and by the end of November or December the relationship had deteriorated. Examples of the situation were given by the witness, she explained that’s he was the room leader and if she told the claimant that a child was not to sleep the claimant would place the child down for a sleep. If she told her a child was to have soup the claimant would give the child yogurt, if she said the children were to play with painting the claimant would say to have jigsaws.
In February 2013 they were called to a meeting by RF who is the owner and manager. RF told them that parents had complained about the interaction at the door and not being friendly enough. RF told them to be friendly and to greet the parents. The claimant wanted to know which parents had complained in that she wanted to take the matter further.
The witness explained that the atmosphere was not nice in work between the claimant and herself. She would have to ask the claimant questions directly and sometimes the claimant ignored her.
Another incident occurred in that a parent complained that he child’s nappy had not been changed. It was ascertained that it had been the claimant’s turn to change nappies. The claimant maintained that she had changed the nappy and that she had marked it on the chart to indicate this. However RF on speaking to the parent did not believe the nappy had been changed. Another “Sleep chart” was opened to the Tribunal and it was shown that the baby was marked as asleep when the claimant had said she had changed the nappy and it was not possible to change the nappy if the child was asleep. Also both charts had been signed by the claimant.
A few weeks before the claimant finished her employment she was told by another employee that the claimant was expecting. She thought that this was great news.
The witness explained that the relationship with the claimant deteriorated further and she felt that she felt she could not continue. She handed in her resignation on 24th April 2013. She had a meeting with RF and another person. RF asked her to tell her about everything that was going on. She explained the situation to RF.
Later on she and RF and the claimant had a meeting. The claimant apologised to her but did say that she did not know what she was apologising for.
The witness remained in her employment.
When asked about RF’s reaction to the claimant’s pregnancy she said that RF thought it was great news and that there would be another baby in the Crèche.
The Tribunal heard evidence from RF who is owner/manager of respondent. She explained that they have four staff and circa 50 to 55 children.
The claimant commenced employment because one of the child minders was leaving to commence a new career and the claimant was recommended by one of the parents. She interviewed the claimant and she seemed quite shy. The claimant commenced on a twelve month probationary period. The claimant had fetac level five but had not got her final certification or award. She set a deadline for January 2013 for the claimant to obtain the certification.
In January the claimant approached her and the claimant was upset and told her that she did not have the qualifications. The claimant told her that she did not quite complete her qualifications because of a difficult personal situation. She spoke to the claimant and told her that she would make enquiries. After making enquiries she told the claimant that she would have to do two modules of the course and the claimant was very happy about this. The claimant then informed her that she would not have the time or money to do the modules.
The witness went on to explain that after a while it was apparent to her that the claimant did not like her. The claimant was abrupt to her and commented that her children were spoilt. The claimant was less than polite to parents that called to the door. Rather than confronting the claimant about this she gathered all the staff and reminded them to be nice to the parents as there had been complaints. The claimant picked up on this and asked who made the complaint. She did not want the claimant to confront the parent/s as she was very direct in her attitude.
The witness re-iterated to the Tribunal the incident regarding the dirty nappy and the claimant’s involvement and her enquiries as to the incident.
The witness then went on to explain how she discovered that the claimant was expecting. She told the Tribunal that she thought that the news was brilliant and that it would mean the claimant could empathise with the parents.
The witness then explained the situation regarding JO’L in that JO’L handed in her resignation. She was shocked that JO’L was resigning and she asked her to tell her everything that had happened. JO’L told her of her difficulties with the claimant. She then met the claimant with another person. At one point the claimant got very angry and left the meeting. The claimant was extremely irate and left the building without her shoes. She returned to collect her shoes and BS calmed the claimant down.
She then met the claimant and told her that she did not want her or to leave. She explained that JO’L was terrified of her and the claimant asked to meet with JO’L but she told her that was not going to happen. She them sat down with JO’L and the claimant and the claimant apologised to JO’L but said that she did not know what she was apologising for. She then told JO’L to hold onto her resignation and that they would sort things out and JO’L said that she would try.
She then spoke to the claimant and told her that it was her last chance and that she was going to give her a letter of warning.
The next morning the claimant arrived in and asked to meet her. She met the claimant and asked her if all was ok the claimant said “no thanks to you”. The claimant then said that she had a diary and wanted her to sign it on a daily basis to show that all was ok. She told the claimant that she could not as she was not working beside her all day. The claimant then told her that if she would not sign it then JO’L would sign it. She was incredulous that the claimant would say this as she had just told her the previous day that JO’L was terrified of her.
After taking advices she met the claimant at a later time and handed her a letter terminating her employment.
Determination:
The Tribunal, having heard all of the evidence adduced, determines that the claimant was not dismissed for reasons of pregnancy. The claimant does not have the required service to bring a claim under the Act. Accordingly, the Tribunal does not have jurisdiction under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)