EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-103
PARTIES
Katorzyna Lapacz
(Represented by Tiernan Lowey B. L. instructed by Crimmins Howards Solicitor)
AND
Anokato Limited
(Represented by Michael J Breen & Co Solicitors)
File reference: EE/2014/489
Date: 19th July 2016
1 The Claim
1.1 The Complainant has stated that this claim concerns discrimination based on gender and family status towards the Complainant due to the allegation that she was dismissed by the Respondent when she was pregnant on the 12th of August 2014 contrary to Section 14A (1) of Employment Equality Act 1998 and 2004 (hereinafter the “Acts”).
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 10th of September 2014 under the Acts.
1.3 In accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.
1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 17th of May 2016.
1.5 The Complainant and the Respondent attended the hearing along with their representatives.
1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.
2 Complainant’s Submission
2.1 The Complainant stated that she was dismissed when she told her employer she was pregnant. The Complainant told her employer she was pregnant on the 11th of August 2014 and was dismissed on the 12th of August 2014.
2.2 The Complainant states that a meeting was held on the 12th of August 2014 at 7.30am with management of the Respondent with regard to cakes made by her co-worker.
2.3 The Complainant states that she asked for help at the meeting and states that she would lower her wage from €11 to €10 so if she could have no responsibility for managing others people work. The Complainant states that the employer did not agree with this idea and got cross.
2.4 The Complainant stated that she was told to ‘work fully in normal way or clock out and leave’. The Complainant stated that she left after this. The Complainant states that she didn’t think that she was dismissed at that stage and that her employment would not end like that after seven years of employment.
2.5 The Complainant said she was praised a lot for her job. The complainant states that she went from praise to gross misconduct within a month. She did acknowledge there were problems highlighted with the cakes and her doing the icing but she stated she was only responsible for her own work.
2.6 The Complainant states that she went home after the meeting, she was crying and went to bed all day. She stated that colleagues were calling her but that she didn’t take any calls. She informed the Adjudicator that she went to the doctor the next day and got a cert for absence which covered her until the end of the week. Her employer received this on the 14th of August 2014 from the Complainant’s colleague who hand delivered it. The Complainant’s colleague came back on that day and gave the Complainant her P45 which she received in the envelope with her medical cert stapled to it. There were no other documents received with the envelope so there was no explanation received as to why she was receiving her P45 or a reason for her dismissal.
2.7 The Complainant stated that on the 14th of August 2014 she went to meet her employer who was the owner. He told her that he would discuss the matter with management and that he would come back to her on Monday.
2.8 The Complainant informed us that she did not get a response on the Monday so she called him. He informed her that she wouldn’t get her job back.
2.9 The Complainant was never given an opportunity to appeal this decision and there was no written invitation to the meeting, any previous warnings, or any reason for her dismissal in writing given to her.
3 Respondent’s Submission
3.1 The Respondent states that the Complainant was not dismissed because of her gender or family status but rather owing to her refusal to carry out duties which the Respondent defined as Gross Misconduct.
3.2 The Respondent stated that the Complainant was a very good performer for seven years and that she had been trained on the job from scratch in the bakery.
3.3 The Respondent stated that he took notes at the meeting and also had notes of previous issues. The Respondent spoke about issues with cakes from Spring 2014. The Respondent stated that there was a problem with cakes and bad attitude associated with the Complainants performance.
3.4 The Respondent stated that the Complainant choose the work she wanted to do and she refused to do the intricate icing of cakes etc. The Respondent stated that the Complainant choose the easy work and got a colleague who was new and inexperienced to do the more difficult intricate work.
3.5 The Respondent stated that there was also a meeting the week before the Complainants dismissal and that problems in the bakery were discussed at the meeting such as badly made cakes as well as her refusal to do the intricate work or help her colleagues.
3.6 The Respondent stated that the Complainant refused to help or do this work at this meeting but he gave her a week to do the job better and to do the full job. The Respondent was not aware that the Complainant was pregnant at this time.
3.7 The Respondent stated that the Complainant said that if she got more money to do the job that she would do the work. The Respondent stated that the Complainant said that it is not fair that she is only on €11 per hour and that new people who start have no responsibility.
3.8 The Respondent claims that he gave the Complainant time to re-consider refusing to do these aspects of her job.
3.9 At the meeting her employer said he showed her the Company Handbook and told her that it was Gross Misconduct to refuse. The Complainant stated that she did not receive a company handbook and that she doesn’t remember receiving a copy of the handbook.
3.10 The Respondent claims that the dismissal related to the Complainant refusing to do these aspects of her job and was not connected to her pregnancy.
3.11 A colleague of the Complainants [CO] stated that the Complainant would tell her to make the cakes herself. CO stated that the Complainant would leave her to finish work and go home. CO also confirmed that she had seen the Complainant refusing to help when asked.
3.12 The Respondent’s son [RS] who works in the premises acted as a witness for the Respondent. RS stated that there had been more problems with cakes and customer complaints from February 2014. RS stated that he found out the Complainant was pregnant before meeting with her. RS stated that they had already decided to dismiss her before this meeting occurred and before he was informed of the pregnancy due to the number of mistakes the Complainant had made.
3.13 A colleague of the Complainant [CT] spoke and stated that she herself was pregnant during her employment and she had no issues. CT noted that the Respondent had offered her the option to change hours during her pregnancy. CT heard the Complainant refusing to do the work and that she did not help her colleagues. CT noted that it was either the Complainants way or ‘the high way’.
3.14 The Bakery Supervisor [BS] spoke and confirmed problems with the cakes and confirmed that the Complainant refused to do cakes or help her colleague.BS attended the meetings on the 5th and 12th August 2014 where the issues of performance were discussed. At the meeting BS stated that he was not happy that the Complainant was not helping colleagues with certain aspects of the job and that she was refusing to make cakes. BS stated that the Complainant did not ask for her wages to be reduced and stated that she had been asking for a raise for a long time. BS stated that this was not a heated meeting and that he does not remember the Company Handbook or Gross Misconduct being mentioned at the meeting.
4 Findings and Conclusions
4.1 In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.
4.2 Section 85 [A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination.
85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
4.3 In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. The Complainant has presented evidence through her written and oral submissions which constitute a prima facie case and it is my opinion that the Complainant has established the burden of proof in regards to her complaint.
4.4 The Complainant claims to have been dismissed as a direct result of informing her Manager that she was pregnant. The Complainant states that the termination of employment the day after the Complainant informed the Respondent of her pregnancy occurred because of her informing the Respondent of her pregnancy. This refers to Section 2(1) (a) and Section 6(2) (f) of the Unfair Dismissals Acts 1977 to 2007 and/or the discriminatory dismissal pursuant to the Employment Equality Acts, 1998 to 2008.
4.5 The Respondent has provided evidence to substantiate their claims that they discussed performance issues with the Complainant on a number of occasions prior to her pregnancy.
4.6 The Respondent however did not provide the Complainant with an invitation to attend the meeting which resulted in her dismissal to outline the allegations, inform her that it could result in disciplinary action up to and including dismissal, she did not receive the rules of natural justice not did she receive duly substantiated reasons for her dismissal in writing or did not offer her the opportunity to appeal the decision.
4.7 The Complainant had seven years of employment. The Respondent stated that shortly before her pregnancy the Complainant had refused to do work related to her role due to pay. This, although unacceptable, needed to be addressed via performance management and fair procedures.
4.8 The Complainant confirmed she was pregnant on the 11th August 2014 and was brought to a disciplinary meeting the following morning, 12th August 2014 at 7.30am. At this meeting the Complainant was dismissed. There was no disciplinary process or rules of natural justice followed. There was no paper trail kept although there may have been performance and attitude issues with the employee.
4.9 Where the employee is dismissed while pregnant or on maternity leave both legislation and case law requires the employer to show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, should be set out in writing.
4.10 On the 12th August 2014 at 7.30am, the day after confirming her pregnancy, the Complainant was dismissed. There was no disciplinary process or rules of natural justice followed nor was there an adequate paper trail to show her dismissal was warranted and fair and not linked to her notification to her employer that she was pregnant. Therefore, it is my conclusion that this complaint is upheld and that a discriminatory dismissal occurred.
5 Conclusion/Decision
5.1 Section 85[A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination. In accordance with the above mentioned legislation I conclude and issue the following decision that the Complainant has established a prima facie case and is covered by the appropriate act. The Complainant has established that the specific treatment alleged has actually occurred.
5.2 I find that the Complainant was dismissed in an unfair and discriminatory manner linked to her pregnancy.
5.3 I am satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable I order the Respondent to pay the Complainant a total of €15,840 in compensation. This figure represents compensation for infringement of her rights under the Acts and is not taxable.
____________________
Caroline McEnery
Adjudication Officer
19th July 2016