ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00002616
A General Operative
Medical Devices Company
Waters & Associates Solicitors
IBEC, Declan Thomas
Complaint/Dispute Reference No.
Date of Receipt
Complaints seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998.
4th April 2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997.
4th April 2016
Date of Adjudication Hearing: 22nd March 2017 and 31st October 2017.
Workplace Relations Commission Adjudication Officer: Seán Reilly
In accordance with Section 41 of the Workplace Relations Act 2015, Section 79 of the EmploymentEquality Act 1998, Section 27 of the of the Organisation of Working Time Act 1997 andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant was employed by the Respondent from 25th May 2015 to 25th November 2015 and her weekly rate of pay was €351.00c.
The Complainant was submitting that (a) she was discriminated against on the grounds of gender by the Respondent in that she was dismissed by the Respondent by reason of her pregnancy and further (b) that she was penalised by the Respondent, both in breach of her rights and entitlements under the Employment Equality Act 1998. In addition the Complainant was submitting that the Respondent was in breach of her rights in relation to rests and intervals (breaks) at work in accordance with the provisions of the Organisation of Working Time Act 1997. The Respondent was rejecting and denying all of the complaints.
Both parties made copious and extensive submissions, both written and verbal and submitted extensive authorities in support of their respective positions. What follows is a brief summary of the parties positions; however, I wish to confirm that I have fully taken into account all of the submissions made in arriving at my findings, conclusions and decisions.
Summary of Complainant’s Cases:
Employment Equality Act 1998
The Complainant said that she commenced employment with the Respondent on 15th May 2015 as a Process Assurance Operator and she said the Respondent terminated her employment on 25th November 2015.
The Complainant said that she had a mid-probation Review Meeting on 22nd September 2015 in which she scored 93%. She said the Review confirmed that her performance was up to standard in broad terms except for the category “Attendance, punctuality and break adherence”, where it was noted that she had 10.60% absenteeism rate since the commencement of her employment. The Complainant said that prior to the Review taking place, she had been off work sick on two separate occasions, namely 26th to 29th July 2015, certified sick with a kidney infection and 7th to 8th September 2015, certified sick with gastritis.
The Complainant said that following 22nd September she was absent from work from 12th to 21st October 2015, while pregnant, with a certified kidney infection and from 2nd to 14th November 2015, again certified sick due to a “pregnancy related illness”. The Complainant said that following each absence she provided a medical certificate to her named Supervisor/Team Leader.
The Complainant said that in August 2015, she learnt that she was pregnant and said it was not a planned pregnancy. The Complainant notified her Supervisor of her pregnancy during the week commencing 21st October 2015.
The Complainant said that on Monday 16th November 2015, she was, without prior notice, requested to attend a Meeting and was informed by the named HR & Training Administrator that her probation was under review and she was told that this was due to the fact that during her certified absences from work, she failed to comply with the policy that required that direct contact was to be made with her Supervisor within 2 hours of her absence.
During this Meeting, the Supervisor said that the Complainant’s absence from work resulted in them missing targets and having to pay overtime pay to employees called in to cover her absences, but no evidence was produced to support this contention. The Complainant said that when she reminded her Supervisor of her pre-planned appointment with her Doctor scheduled to take place on 18th November 2015, he immediately questioned as to whether she would be attending work the following day.
The Complainant said that at no time prior to 16th November 2015, had she ever been informed that there was an issue in relation to her complying with the policy regarding certified absences from work and/or that this was something which would endanger her continued employment. She said that this is in contradiction to the Respondent’s stated disciplinary procedures which states at Pages 21 of the Employee Handbook, that: “The Company’s policy is to counsel employees and give them the opportunity to take corrective actions.”
On the evening of 16th November 2015, the Complainant sent an email to the HR & Training Administrator to state her concerns and to challenge points made during the Meeting, but she did not receive a response. On the following day, 17th November 2015, during a Meeting with her Supervisor and the named HR & Training Manager, the Complainant was handed a letter of dismissal and the points raised in the Complainant’s email were not addressed. The Complainant said that her dismissal came as a shock to her. She said her dismissal letter stated inter alia:
“During your recently unauthorised absences from work you did not comply with the Employee Handbook, Terms and Conditions of Employment, Form-0069 (extract below). The requirement to contact your Team Leader during unauthorised absences was outlined during Induction Training on 23rd May and 26th July 2015. You did not contact your Team Leader within the timeframe specified and on six (6) occasions you did not attend for work as promised and did not contact the Company as follows…….
She said the dismissal letter concluded as follows:
“……..as you have not met the required standard for staying in touch with your Team Leader during your absence ……. We are providing you with one week’s notice and your probation will end on 25th November 2015.”
The Complainant said that the letter made reference to 11 specific dates, all of which, she said, were within the period when she was pregnant. She said that on at least 6 occasions, the Respondent was formally on notice that she was pregnant and that the illness as being “pregnancy related”. She said that one of these dates referred to a ‘phone call on 4th November 2015 and it is her recollection that her Supervisor was informed that she would be off work for the rest of the week, but that she would let him know if she felt able to return to work before then.
The Complainant said that on 18th November 2015, she raised a formal grievance with the Respondent in relation to her proposed dismissal and the Respondent’s reasons for same.
The Complainant attended a Meeting on 19th November 2015 with 3 named members of management. She claims that she was not permitted to raise her points of concern during the Meeting as she was constantly interrupted by 2 of the managers.
Following this Meeting, the reasons for the Complainant’s dismissal were upheld.
In accordance with the second stage of the Grievance Procedure the Complainant appealed the decision to the Plant Manager.
The Complainant’s Doctor wrote to the Respondent on 20th November 2015, stating difficulties that had arisen during her pregnancy and that clearly affected her work and/or ability to work. This letter stated (the Complainant’s and the Doctor’s name are omitted from this quote):
“…. attended …. for the first time on 24 September 2015. She came in for a second opinion. She was found to have a haematological disorder in pregnancy. This was previously undiagnosed. She has been confused and dizzy, suffering from antenatal amnesia and has been unable to wake up most mornings. She attended casualty and the obstetric departments several times (…) I would ask [the Company] can please give consideration to extending her probation, as her situation and absences from work have been as a result of pregnancy related illness. If you require any further information, I am happy to take a ‘phone call from you.”
The Complainant said that the Plant Manager was provided with a copy of the Doctor’s letter. At the end of the Appeal Meeting the Plant Manager remarked to the Complainant that, in his personal opinion, she would be wise not to take the matter further as no other employer would want to employ her if she were seen to be taking an action against the Respondent. On 24th November 2015, the Complainant was notified that her appeal was not successful and that the termination of her employment with the Respondent stood.
In accordance with the 3rd step of the Grievance Procedure the Complainant appealed the decision to the named Managing Director (MD). This Appeal was heard on 8th December 2015. On the following day, the Complainant was informed that her appeal was not upheld and that the decision to dismiss her stood.
The Complainant said she was dismissed during her pregnancy and it is her case that in dismissing her in the circumstances that occurred, the Respondent discriminated against her on the grounds of gender, which constituted a breach by the Respondent of the Employment Equality Act 1998. It is her case that the basis for her dismissal was linked to her absences from work resulting from pregnancy-related illness, i.e. a haematological disorder and antenatal amnesia.
The Complainant said that on no occasion when she called her Supervisor to report sickness and/or on her return to work and/or when she handed in her medical certificates was she ever reminded or warned, orally or in writing, that she was not complying with the Respondent’s Absence and Sick Leave Procedures and/or that her conduct could potentially lead to her dismissal. She was never informed, prior to 17th November 2015 that there had been any issues or objections to the manner in which her sick leave was handled.
The Complainant said that furthermore on no occasion did the Respondent question the nature of her pregnancy-related illness as certified by her GP. She said the Respondent never addressed her antenatal amnesia and her inability to wake up most mornings and the knock-on effect this had on her certified absences from work. Neither did the Respondent chose to have the Complainant examined by a doctor nominated by them.
The Complainant said that while aware of her pregnancy-related illness, the Respondent decided to dismiss her, without giving any prior warnings and/or raising any issues in relation to her alleged failure to comply with their policy to contact her Team Leader during her sick absences. The Complainant said that from commencement of employment with the Respondent until 16th November 2015 (the day before she was notified of her proposed dismissal) she was not made aware of any issues of concern that might endanger her continued employment.
The Complainant said it is her case that she was dismissed for pregnancy-related matters. She said she was treated less favourably by the Respondent on the grounds of her pregnancy and/or pregnancy-related illness and she submitted that this constituted direct discrimination as regards her working conditions on the gender ground.
The Complainant further submitted that she was victimised by the Respondent contrary to subsections 74(2) and 72(2)(g) of the Employment Equality Act 1998. She said that in her grievance letter of 18th November 2015, she made a complaint of discrimination on the pregnancy-related grounds against her and stated her intention to take proceedings under the 1998 Act to the WRC. In her letter the Complainant said:
“ I have taken legal advice as I feel very aggrieved by the Respondent’s handling of this issue and I have been informed that I have a right of action for unfair dismissal on discriminatory grounds as it is clear my dismissal is pregnancy related, including because the [Respondent] have not treated me fairly in presenting all of the issues in a letter of dismissal after having kept a note of all these incidents without issuing a warning to me in anticipation of my ultimate dismissal. I have been informed that I can file a complaint with the Equality Tribunal and I intend to do so if I cannot reach a satisfactory outcome amicably. However, given the stress that would bring at a time when I am already upset and stressed, I would like to avoid that course of action unless it is necessary (….)
I am raising the above as a formal grievance and ask that it be treated as such. Given my imminent date of dismissal I would ask that this be treated urgently as this is having a significantly stressful effect on me.
I look forward to hearing from you regarding the grievance meeting. I would hope that we can reach an amicable resolution and avoid costly and protracted legal proceedings”
The Complainant said it is evident from this letter that she did complain to the Respondent on discriminatory (pregnancy-related) grounds and did state that she would be taking a case to the Equality Tribunal to assert her legal entitlements. The Complainant submitted that following this statement from her and during the third stage of the Grievance Procedure (the Appeal Hearing with the Managing Director), he forewarned her against pursuing the matter further and taking legal proceedings against the Respondent. The Complainant submitted that this action of the Respondent coupled with the dismissal of her Appeal against her dismissal on 24th November 2015 amounted to victimisation and/or harassment.
The Complainant quoted from Section 6, Section 74, and Section 85 of the Employment Equality Act 1998.
The Complainant referred to and quoted from the following cases in support of their position: 1.Artur Valpeters -v- Melbury Developments Limited, 2. Ivana Spasic -v- Dyflen Publications Limited, 3. O’Sullivan -v- Herco Investments Limited, 4. Tormey -v- Rodnane Marketing, 5. Bermingham -v- Colour Hair Team, 6. Handels-Og Kontorfunktinaerenes Forbund i Danmark -v- Dansk Arbejdsgiverforening, 7. Webb -v- EMO Air Cargo (UK) Ltd, 8. Brown -v- Rentokil 9. Dekker -v- Stichting Vormingscetrum Voor Jong Volwassen (VJW-Centrum) Plus and 10. Deborah Healy -v Trailer Care Holdings
The Complainant said that in the case of Brown -v- Rentokil Ltd, the ECJ recognised the protection to be afforded to women with pregnancy-related illness and the fact that this is different to other forms of illness. In that case, that employer had a policy of dismissing any employee after 26 weeks sick leave. However, the ECJ held that the Employer was not entitled to commence calculation of that 26 week period until after the end of the employee’s maternity leave, in circumstances where the illness was related to her pregnancy. The Complainant said the Rentokil case clearly established that dismissal of a women at any time during her pregnancy for absences due to incapacity for work, caused by an illness resulting from that pregnancy, is direct discrimination on the grounds of gender contrary to the Equal Treatment Directive.
It was further submitted by the Complainant that she was victimised by the Respondent contrary to subsection 74(2)(a) and 74(2)(g) of the 1998 Act. She submitted that after making a complaint of discriminatory dismissal and notifying the Respondent of her intention to bring a complaint to assert and protect her statutory entitlements, she was warned by the Respondent Managing Director, during the second Appeal Hearing not to pursue the matter further, I.e. take legal proceedings against the Respondent, as no other employer would want to hire her if she were seen to be taking action against the Respondent. It was submitted that that the rejection by the Plant Manager of her appeal of the decision to dismiss her constituted an adverse treatment by the Respondent as this occurred as a reaction to the Complainant having made a complaint of discriminatory dismissal and having given notice of her intention to take a legal action under the 1998 Act in that respect. The Complainant said that in Moriarty -v- Duchas, the Equality Tribunal stated that the act which results in victimisation must be connected to reliance on equality rights in the 1998 Act. The Complainant submitted that there is a nexus between her being warned not to pursue the matter further as no other employer would employ her if they found she had sued the Respondent and then having her appeal dismissed by the Plant Manager. The Complainant submitted that penalising her for the foregoing reasons fall squarely within ‘victimisation’ pursuant to the 1998 Act.
Based on the foregoing the Complainant submitted that her complaints under the Employment Equality Act 1998 were well founded and they should be upheld.
Organisation of Working Time Act 1997:
The Complainant said the Respondent was in breach of her rights in relation to rests and intervals at work (breaks) in accordance with the provisions of Section 12 of the 1997 Act.
The Complainant said Section 12 of the 1997 Act requires that an employer must ensure that an employee must be provided with a break of at least 30 minutes within a period of 6 hours of working and she said that she did not always receive this minimum 30 minutes’ break in breach of this.
The Complainant said she lodged this complaint under the 1997 Act for demonstrative purposes only, where the main issue before the Adjudicator relates to breaches of the Employment Equality Act 1998.
The Complainant said that in the normal course of events she would not have even contemplated the making of such a complaint under the 1997 Act. However, in this particular case, in the substantive complaints, the Respondent has asserted that a failure to follow procedures was the reason for the Complainant’s dismissal. The Complainant said that at no time prior to a decision being made that she was to be dismissed for failing to follow procedures, being the purported reason for dismissal, was that she informed of the importance of complying with these procedures. The Complainant said there were ample opportunities to do so.
The Complainant said that Anthony Kerr’s Annotated Employment Statues states the following in respect of Section 12 of the 1997 Act:
“In The Tribune Printing & Publishing Group -v- Graphical Print & Media DWT 6/2004 the Labour Court held that an employer was under a positive duty to ensure that employees received their breaks. Merely stating that employees could take rest breaks if they wished and not putting in place procedures to ensure that the employee receives those breaks, thus protecting his health and safety does not discharge that duty.”
The Complainant said that it is clear from the time records submitted by the Respondent that there have been breaches on the part of the Respondent in “ensuring” that she received her full entitlements under Section 12 of the 1997 Act.
The Complainant’s Representative said that he would take the private view that these breaches were relatively minor, albeit persistent, where the Respondent sought to rely upon admitted breaches of an internal procedure by her to dismiss a pregnant employee, while at the same time it does not apply the same inflexible standard to themselves.
The Complainant asked that it be considered that the breaches as shown by the Respondent’s own paperwork, particularly when considering the strict and inflexible and ultimately unfair and discriminatory manner in which they treated a pregnant employee, for admitted failures to comply with internal Respondent procedures.
Based on the foregoing the Complainant sought favourable decisions
Summary of Respondent’s Case:
The Respondent was rejecting and denying all of the Complainant’s complaints under both Acts and were submitting that they were not well founded and that they should be rejected.
Employment Equality Act 1998:
The Respondent said the Complainant has made a complaint on the grounds of ‘Gender’, ‘Victimisation’, and ‘Dismissal for Discriminatory Reasons’ under the Employment Equality Act 1998.
The Respondent said they strenuously deny that the Complainant was subjected to any discriminatory treatment either directly or indirectly and they contend that no discriminatory treatment took place.
The Respondent submitted that the Complainant has not established or disclosed a prima facie case under the Employment Equality Act 1998 as is required
The Respondent said the Complainant commenced employment with them on 25th May 2015 as an Process Assurance Operator. The Complainant received notice of the termination of her employment on 17th November 2015 and her employment ended on 25th November 2015.
The Respondent said when the Complainant commenced employment with them on 25th May 2015 she was issued with a Letter of Offer and a written Contract of Employment. She further received a copy of the Employee Handbook Terms and Conditions of Employment stating policies and procedures, including Attendance, Absence, Sick Leave requirement, Grievance and Disciplinary Procedures, Equality and Bullying Procedures etc.
The Respondent said that the Complainant received Induction Training Part 1 on 15th May 2015, further confirming the Respondent’s expectations in terms of Attendance, Absence, Sick Leave, Probation etc. On 16th July 2015, the Complainant received Induction Training Part 2, further stating the Respondent’s expectations in terms of Attendance, Absence, Sick Leave and Probation in addition to the Grievance and Disciplinary Procedures, Equality and Bullying policies etc. The Respondent said that during the Induction Training Part 2, it was clearly stated that if asked to attend an interim Probationary Review with the Team Leader/Manager, that it is due to performance or attendance etc falling short of the Respondent’s requirement. During Induction Training Part 2 it was stated that should this situation arise the employee needs to be clear as to the issue that needs to be addressed and understand the impact on passing probation, so that they can address the shortfall before the 6 month Probationary Review.
The Respondent said that in accordance with her Contract of Employment and their Policy the Complainant was subject to a 6 month probationary period as is standard practice and as contained in contracts of employment for new employees.
During her probationary period the Complainant was required to attend an Interim Probationary Review Meeting on 22nd September 2015. The Review Meeting was conducted by the Complainant’s named Team Leader. The Complainant met the specified requirements for her work in general, productivity, quality of work, team working, housekeeping etc, however, her attendance, punctuality and break adherence was identified as needing improvement. Her absenteeism was at a level of 10.6% since her commencement (4 months). She was alerted to this during the Interim Probationary Review Meeting and was reminded as to the Terms and Conditions of Employment in relation to attendance, sick leave etc.
The Respondent said that throughout the Complainant’s period of employment there were a number of occasions (4) when the Complainant was out on sick leave as follows:
- 11th June 2015, her medical certificate stated ‘viral infection’
- From 6th to 10th July 2015, her medical certificate stated ‘kidney infection’
- From 27th July 2015 to 29th July 2015, her medical certificate stated ‘urinary tract infection’
- 7th September 2015, her medical certificate stated ‘gastritis’.
The Respondent said that these periods referred to above were the ones that formed part of the Complainant’s Interim Probationary Review that took place on 22nd September 2015.
The Respondent said that following the Probationary Review there were further periods of sick leave as follows:
- From 12th October 2015 to 21st October 2015 her medical certificate stated ‘kidney infection’
- From 22nd October to 23rd October 2015, this leave was uncertified.
The Respondent said that the Complainant returned to work following this period of sick leave on 27th October and she informed her Team Leader of her pregnancy. The medical certificate stated ‘pregnancy related’.
The Respondent said the Complainant had a further period of sick leave from 2nd to 13th November 2015 and the medical certificate stated ‘pregnancy related’.
The Respondent said the Complainant returned to work on 16th November 2015. She asked for a Meeting with the named HR & Training Administrator. The HR & Training Administrator and the Team Leader met with her later that morning. During this Meeting the Complainant was asked why she did not keep in touch during her absences. She stated that it was her practice to call after she had been to her Doctor and that she did not remember the information from Induction Training, Part 1 and Part 2. It was explained to the Complainant that the Respondent’s concerns were not in relation to her absences, but rather in relation to her failure to communicate with the Respondent during her absence and the impact of her non-attendance on production was also explained to her.
The Respondent said that later that day the Complainant called to the HR & Training Administrator. She was asked if she understood that the issue related to her failure to communicate, which she acknowledged. She asked why communication was not mentioned during her Interim Probationary Review. She was informed that her failure to stay in touch was not raised during her Interim Probationary Review as it was not an issue at that time, the issue at that stage being her attendance (minutes of meeting submitted to hearing).
On 17th November 2015 (the following day) the Complainant was called to a Meeting with the named HR & Training Manager and her Team Leader. The Respondent said during this Meeting it was explained to the Complainant that they were not in a position to continue with her contract of employment as she had not met with the terms and conditions of employment for contacting her Team Leader during her absences, on 6 occasions.
On 18th November 2015, the Complainant sent an email to the HR & Training Administrator stating her dissatisfaction with the Respondent’s decision to dismiss her and she raised a grievance to appeal that decision. On 19th November 2015, the Complainant hand-delivered a letter form of the email.
On the same day the Complainant met with the HR & Training Manager, the HR & Training Administrator and her Team Leader. During the Meeting the issues raised by the Complainant in her correspondence were discussed. The Reasons for her dismissal were confirmed to the Complainant, specifically that her dismissal was not related to her pregnancy and that it was because she did not contact her Team Leader with the specified timeframe of within 2 hours of starting time and that on 6 occasions she did not attend for work as promised and did not contact the Respondent. The minutes of the Meeting were emailed to the Complainant after the Meeting. The Complainant’s grievance was rejected.
The Complainant contacted the named Operations Director to appeal the grievance decision.
The Operations Director and the Production Unit Manager met with the Complainant on 24th November 2015 to hear her Appeal. On 24th November 2015, the Operations Director and the Production Unit Manager issued a letter to the Complainant informing her that her Appeal was rejected and that her dismissal was upheld.
The Complainant appealed this decision and the Managing Director (MD) met with her and her named Employee Representative on 8th December 2015 for that purpose. The HR & Training Manager was also in attendance for recording purposes only. On 9th December 2015, a letter issued to the Complainant rejecting her Appeal and that the decision to dismiss her stood. This letter stated:
“As outlined in the letter to you dated 17th November 2015, we are not in a position to continue with your contract of employment as you have not met the required standard for staying in touch with your Team Leader during your absences. The standard is detailed in the Employee Handbook, Terms and Conditions of Employment and were outlined during your Induction Training on 25th May and 26th July 2015. On six (6) occasions you did not attend for work as promised and did not contact the Company. The ending of your contract of employment is not related to your pregnancy as you have indicated.”
The Respondent said it has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that s/he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory grounds cited.
The Respondent quoted from Section 85(A) of the Employment Equality Act 1998.
The Respondent said that the Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health -v- Mitchell  ELR 201 and they quoted from that Decision.
The Respondent said the Labour Court went on to hold that in a prima facie case of discrimination under the 1998 Act, firstly, the Complainant must prove on the balance of probabilities the primary facts upon which s/he seeks to rely in raising a presumption of unlawful discrimination. Secondly, these facts, if proven, must appear to be of significant significance to raise the presumption contended for. Thirdly, if the burden shifts to the employer they must prove on the balance of probabilities that the impugned decision was in no sense whatsoever influenced by one of the grounds proscribed under the Act.
The Respondent referred to and quoted from the case of Margetts -v- Graham Anthony & Company Limited EDA038, Valpeters -v- Melbury Developments Limited EDA09/17 and Zafar -v- Glasgow City Council in support of their position.
The Respondent said that therefore the Complainant must establish and prove a factual background from which it can be inferred that discrimination has occurred on the balance of probabilities. The Respondent said that in this case the Complainant has not established such a background or provided any details with regard to thealleged discrimination complained of. The Respondent said that the Complainant has been unable to provide any supporting evidence sufficient to establish a prima facie case of discrimination. The Respondent said that furthermore, there is no evidence of any alleged discrimination in the reasons why the Complainant’s employment came to an end.
The Respondent contended that the Complainant was not treated any different than any other employee and was always treated in an open and transparent, appropriate and reasonable fashion. They also said that in this respect they rely on the well-established cases referred to above.
The Respondent said that it is only if these primary facts are established to the satisfaction of the Adjudication Officer and are regarded by her/him as being of significant significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the Employment Equality Act.
The Respondent said that in order to determine whether the Complainant has established a prima facie case of discrimination the Equality Tribunal has commonly employed a 3 stage test:
- The Complainant must establish that s/he is covered by the relevant discriminatory ground.
- The Complainant must establish that the specific treatment alleged has actually occurred.
- It must be shown that the treatment was less favourable than the treatment that which was or would have been afforded to another person in similar circumstances not covered by the discriminatory ground.
The Respondent said that they can produce, if required, evidence that other employees have been dismissed at a probationary stage for the same or similar infringements of Company policy.
The Respondent said the Complainant is required to make the connection between the alleged adverse treatment complained of and the discriminatory ground they wish to invoke and they referred to the following cases in that respect; Spasic -v- Dyflin Publications Limited [EDA0823] and McCarthy -v- Cork City Council [EDA0821].
The Respondent said that the Complainant has provided no evidence that any of the grounds upon which she seeks to rely influenced the decision of the Respondent in any way when decisions were made to dismiss her. They said she was dismissed solely as a result of her failure to comply with Company Policy and Procedures for which she had prior knowledge as contained in her Terms and Conditions of Employment.
The Respondent sought that based on the foregoing that the Adjudication Officer find that in accordance with Section of 79(6) of the 1998 Act the Complainant has not established a prima facie case of discrimination on the grounds relied upon contrary to 1998 Act and that therefore no onus shifts to the Respondent to rebut any inference and that the complaint must fail.
The Respondent said that the Labour Court have also considered the applicable law in relation to the dismissal of a pregnant employee and a subsequent complaint under the 1998 Act in the case of Anne Mason -v- Winston’s Jewellers [EED032] and they quoted from that decision.
The Respondent said the Complainant cites the case of Tormey -v- Rondane Marketing. They said in that particular case that Respondent had failed to attend the hearing of the case and therfore the Equality Tribunal ruled in favour of that Complainant stating:
“The Respondent failed to engage with the Tribunal in any respect and consequently, it has failed to discharge the probative burden required and the Complainant’s case is therefore entitled to succeed”
The Respondent quoted from Section 6(1) of the 1998 Act.
The Respondent said that in order to prove such discrimination the complainant must prove that a comparator (a person of a different or perceived different gender) would not have been treated in the same way as alleged by the complainant.
The Respondent said that in her statement the Complainant is seeking to rely on a ‘notional comparator’ or ‘no comparator at all’ and she is projecting supposed discrimination without any foundation or evidential proof. They said that the evidential burden to establish discriminatory treatment rests with the Complainant. The Respondent said it is their position that the statement by the Complainant referred to in her submissions amount to “mere speculation or assertions ”and is not sufficient to infer discrimination.
The Respondent said that notwithstanding the foregoing if the Adjudication Officer deems a prima facie case has been established by the Complainant there are a number of other elements to the matter that must be taken into account.
The Respondent said that the fact is that the Complainant had full knowledge that her attendance, punctuality and break adherence was of concern as it was raised by her Supervisor at her mid-way Probationary Review Meeting on 22nd September 2015, and also long in advance of the Respondent becoming aware that the Complainant was pregnant, is in no way consistent with and completely contradicts the assertions made by the Complainant in her written submissions.
The Respondent said that it is commonplace that they, as do other employers, have in place a probationary period at the commencement of employment. They said the Complainant, as a pregnant worker, was not treated any less favourably than a man would have been or any other employee in the circumstances. The Respondent also said that other employees who were pregnant and were known to be pregnant during probation were retained in employment.
A number of witnesses gave evidence on behalf of the Respondent.
Witness No. 1. The Witness said that she was the HR and Training Manager and she gave an outline of what her role in the Respondent Company was and entailed and she said that she has more than 6 years experience in HR.
The Witness gave evidence that supported the Respondent’s case.
The Witness referred to the training afforded to the Complainant. She referred to two particular tranches of Induction Training that was given to all employees including the Complainant.
She referred to Induction P1 Training that she said was provided to the Complainant on her first day of employment with the Respondent and she gave a breakdown of what that day of training provided by HR included and involved.
She said it included detailed briefing on the Terms and Conditions of Employment and also included detailed briefing on key reporting procedures to be observed by employees in the case of timekeeping and absenteeism etc. and further referred in detail to the probationary period involved and the probation reviews. She submitted copies of slides used in this induction training.
The Witness said the Complainant was fully aware of the requirements in relation to reporting procedures to be observed in relation to absences and to the probation period and probation reviews.
The Witness said that Induction Training P2 took place within 3 months of the commencement of employment and that it again covered and reiterated the reporting procedures to be observed by employees in the case of absenteeism and timekeeping as well at covering the probation period and probation reviews.
The Witness said she did not accept that the Complainant was not fully aware of the reporting procedures in relation to absenteeism or that she was not fully aware of the position in relation to probation and probation reviews.
The Witness said that she became aware of problems in relation to the Complainant on 22nd September. The Witness said that at that stage there was no issue with the failure of the Complainant to observe the reporting procedures in relation to absenteeism and it did not arise till after that date.
The Witness said she, along with the Team Leader made the decision to dismiss the Complainant and both of them signed the letter of dismissal dated 17th November 2017.
The Witness said she did not accept the submission made by the Complainant that her failure to observe the reporting procedures in relation to absenteeism was caused by her pregnancy. She said she did not accept that a pregnant employee could not ring the employment and talk to her Team Leader.
The Witness said that other employees, who were not pregnant, but with the same issue as the Complainant, i.e. a failure to observe the reporting procedures had also been dismissed for that reason and she could provide a list in that respect if required.
The Witness said that 230 of the 460 employees were female and 90% of the female employees were of childbrearing age and there had never been the slightest suggestion of discrimination against pregnant employees of which there had been many, including some in their probationary period.
The Witness said that of the many medical certificates provided by the Complainant only one mentioned pregnancy.
The Witness confirmed that despite the fact that she was one of the two persons who made the initial decision to dismiss the Complainant she was also the person who heard the first appeal against that dismissal decision. When it was pointed out to the Witness that this offended against every principle of fair procedure, natural and constitutional justice, that a person should not in any circumstances be involved in any appeal against their own decision, she said that the Company was a relatively small one (albeit with 460 employees) and that they would not have the personnel to have separate persons involved at every stage. She said she did not accept that her involvement at the first appeal stage rendered the process unfair.
The Witness said that her only involvement at the second appeal stage was for recording purposes. (However the Complainant insisted that the Witness intervened and said that pregnancy was not relevant). The Witness did not have handwritten notes from the appeal hearings.
The Complainant said that she did not consider extending the probationary period because of the circumstances and the number of times and the period in which the Complainant had failed to observe the reporting procedures in relation to absenteeism.
The Witness insisted that the Complainant was not dismissed for any reason to do with her pregnancy or even her absences, it was entirely and solely because of her failure to observe the reporting procedures in relation to absenteeism and no other reason.
Witness No. 2: The Witness said that he is a Supervisor/Team Leader and he said that he has circa 20/25 years experience in that respect. The Witness gave evidence that largely supported the submissions of the Respondent. The Witness outlined his role and his interactions with the Complainant.
The Witness said that he would be regularly monitoring and reviewing if targets were met.
The Witness referred to the reporting procedures required by the Respondent in relation to absenteeism. He referred to the need for Supervisors/Team Leaders to be fully informed at the earliest possible time in order to rearrange work arrangements and provide cover necessary to maintain production and work as far as possible. He said that both he and other management and those involved in training emphasised to all employees and in particular new employees on probation the very strong need to comply with the reporting procedures in the case of absenteeism.
The Witness said that he spoke to the Complainant about this and her absence record of 10.6% at her mid-term Probationary Review. In response to questions the Witness said that he ‘could not recall’ if he had warned the Complainant of the possible consequences of not adhering to the reporting procedures (that her job might be at risk).
The Witness said that he was made aware of the Complainant’s pregnancy by her on 27th October 2015.
The Witness said that the first (and only) Medical Certificate he received from the Complainant that mentioned pregnancy was on 16th November.
Witness No. 3: The Witness said that he was the Managing Director with the Respondent and he said that he was the person who would normally deal with appeals against dismissal decisions. He said that he was experienced in that respect.
The Witness said that he heard the Appeal in full and that he fully listened to and considered all the Complainant had to say in that respect.
He said that he did ask some questions. He said that when he asked the Complainant if, in her previous employments did she call in to report her absences when absent; however, he said that she was too upset to respond.
The Witness responded in relation to the suggestion by the Complainant in her submissions that he had told her that she would not be wise for her to take the matter (of her dismissal) further as no other employer would want to employ her if she were taking an case against them and that this amounted to ‘victimisation’ on the grounds of her gender by the Respondent. The Witness said that he believed that he was entitled to give advice to any of his employees and that this was what he was doing, advising the Complainant as an employee as to what he believed was in her best interests. He said that he told her that she was quite entitled to take a case under the Employment Equality Act but that she should carefully consider before she took on such a case because of what it involved and because it could make it harder for her to obtain alternative work. He said that this was not a threat, but rather genuine advice from him to the Complainant.
In response as to whether he had considered extending the Complainant’s Probationary Period as an alternative to dismissal, particularly in view of the letter from her doctor presented to him as part of the Appeal, the Witness said that he had briefly, but was not willing to do this due to the level of non contact by the Complainant. He said that he had never previously seen this level of non contact previously and it was just to high to overlook, he said it was very high over a relatively short period of time. He said he did not accept that a pregnant employee could not contact their employer by telephone. He said in all the circumstances he believed that the dismissal decision was a reasonable one and that it was not connected to the Complainant’s pregnancy.
The Respondent sought that their position be upheld.
Organisation of Working Time Act 1997:
The Respondent denied that that the Complainant was denied her breaks at work in accordance with the provisions of Section 12 of the 1997 Act. The Respondent asserted that that the Complainant was at all times afforded her breaks in accordance with the terms of the Act.
The Respondent said that as part of her training the Complainant received specific training from them on 25th May 2015 and she was informed of her entitlements in that respect namely:
“One 15 minute tea break (paid) and a 30 minute lunch break (unpaid).”
As part of their training employees are also informed that if they do not receive their breaks they must inform their Team Leader, the training document states in that respect:
“Inform your Team Leader, if you have not had the opportunity to take a break.”
The Respondent asserted that at no point in her employment had the Complainant ever informed her Team Leader that she had not been afforded her breaks.
The Respondent said that employees are required to clock in and out at the start and end of their shift and also at their lunch break and the Respondent provided the Complainant’s clocking records. They said that nowhere in these records does it show that the Complainant failed to receive her lunch break.
The Respondent said that the documents clearly show that the Complainant fully and substantially took her breaks in accordance with the provisions of the Organisation of Working Time Act 1997.
Based on the foregoing the Respondent sought a finding and decision that the complaint under the 1997 Act were not well founded and it should be rejected.
Findings, Conclusions and Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts 1998, requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Section 82 of the Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the same Section of the 1997 Act.
I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaints under the two Acts:
Employment Equality Act 1998: CA-00003648-01 (a):
I have considered the evidence and submissions made in relation to the complaint of ‘discriminatory dismissal’ under the Employment Equality Act 1998 and I have concluded as follows. I note that much of the submissions made by the Complainant in relation to the complaints under the 1998 Act relate to alleged unfair procedures and other matters that would render the dismissal as unfair.
However, I note that while there is strong ‘prima facie’ evidence that the Complainant was unfairly dismissed, the case or complaints are not before me as an unfair dismissal claim/complaint under the Unfair Dismissals Acts or the Industrial Relations Acts and accordingly I can make no findings or decisions on that aspect of the case.
The complaints have been referred under Section 77 of the Employment Equality Act 1998. The issues arising for decision are (a) whether the Complainant’s dismissal was tainted by discrimination on gender grounds by reason of pregnancy and (b) whether the Complainant was ‘victimised’ and/or ‘penalised’ on gender grounds by reason of pregnancy by the rejection of her appeal again the dismissal decision and the statement by the Respondent Managing Director warning her against taking a case for dismissal under the 1998 Act as no other employer would want to employ her if she were taking a case against the Respondent.
I note the following in relation to the complaints on the grounds of pregnancy under the 1998 Act:
It is now well established, in case law and otherwise, that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on the grounds of pregnancy. In effect for an employer to dismiss a women during her pregnancy, regardless of the reason for her dismissal, they must have duly substantiated reasons for the dismissal given to the employee in writing.
The are a number of determinations of the Labour Court that outline this position, including but not limited to:
- In Brenda Corcoran -v- Assico Assembly Limited, [EED033] the Labour Court held that: “Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy ……”On the facts of that case, the Court found that that Complainant had informed the Employer of her pregnancy before she was advised that she was being dismissed. While the Court was prepared to accept that the Employer was unhappy with her work performance, they found no evidence that a firm decision had been taken to dismiss her or more importantly that a particular day had not been nominated for her dismissal. The Court concluded that the Employer had not made a firm decision on a day to implement her dismissal and ultimately found that the Employer had not discharged the burden on it to show that the dismissal was for exceptional reasons unconnected with the Complainant’s pregnancy.
- In Deborah Healy -v- Trainer Case Holdings Limited [EDA128] the Labour Court found the question of the burden of proof in cases involving alleged discriminatory dismissal under the Employment Equality Act on the gender grounds by reason of pregnancy in considerable detail.In that determination, the Labour Court in considering the applicable law stated: “In a line of authorities starting with the decision in C-177/88, Dekker -v- Stichting Vormingcentrum voo Jung Volwassenen  ECR 1-3841, the Court of Justice of theEuropean Union (formally the CCJ) hasmade is clear that since pregnancy is a uniquely female condition and adverse treatment of a woman on grounds of pregnancy is direct discrimination on grounds of her sex.
The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union.”
“To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.”
Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides:
Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to the employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant.
The Labour Court goes on the refer to the Pregnancy Directive, (Directive 92/85/EEC), which the Court states provides a comprehensive legal framework in which special protection to be afforded to the safety health and welfare of pregnant women in employment. The Court refers to Article 10 of that Directive which provides:
“In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:
- Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article, within the period of the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
- If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing
- Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.
The Labour Court said the importance of this latter provision, in deciding cases within the ambit of the Equal Treatment Directive, has been emphasised by CJEU on a number of occasions – and they referred to the case C-232/09 Danosa -v- LKB Lizings SZA (2011) CMLR 45, at 60, which states:
“It.is 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, have given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntatily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.”
The Labour Court said the CJEU further said at paragraph 61 of the Report that:
“During that period, Article 10 of the Directive 92/85 does not provide for the exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional grounds for dismissal in writing.”
The Labour Court further said: “It is abundantly clear from these authorities, and from the legislative provisions of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their conditions, from the commencement of their pregnancy until they the end of their maternity leave. The entitlement to the protection to be regarded as fundamental and inviolable right with the legal order of the Union, which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is dismissed during the period of special protection the employer bears the burden of proving on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy. (My emphasis).
-and- the Labour Court further states:
“…. the special protection afforded to pregnant women against dismissal in European Law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to the pregnancy or maternity leave Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy, must, in and of itself, place the onus of the absence ofdiscrimination firmly on the Respondent.” (My emphasis).
The Labour Court have, in numerous determinations since the above quoted one, upheld and continued their reasoning in that respect.
It is not in dispute that the Complainant informed the Respondent of the fact of her pregnancy on 27th October 2015. There was a meeting between the parties on 16th November 2015 at which for the first time the Complainant was informed/advised of alleged problems with her notification of absences The Respondent, without any prior notice, requested the Complainant to attend a meeting on 17th November 2015 at which for the first time she was informed by the Respondent that her probation was under review, and she was informed that she was being dismissed. Her dismissal was confirmed to her in writing the following day
I note and find that there is no dispute between the parties that the Respondent Employer was aware of the fact that the Complainant was pregnant well before any question of the Complainant being dismissed was considered much less taken or a particular date for dismissal nominated.
I note that despite the fact that, at the Appeal Hearing, the Respondent was provided with medical evidence that the failures stated by them a being the reason for the dismissal were caused by pregnancy-related reasons the dismissal decision was upheld. I also note the Respondent confirmed that they had briefly considered extending the Complainant’s Probationary period as an alternative to dismissal but had decided not to.
In the circumstances I am not satisfied that the Respondent has discharged the burden on them to show that the Complainant’s dismissal was for exceptional reasons unconnected to her pregnancy.
Accordingly I declare that the complaint under Section 77 of the Employment Equality Act 1998, in relation to discriminatory dismissal on the grounds of gender by reason of pregnancy is well founded and it is upheld. I have decided that the appropriate remedy in the instant case is compensation. I note that I am obliged to provide a remedy that is not only compensatory, but is proportionate to the wrong suffered by the Complainant and has a dissuasive effect. Having regard to these considerations I require the Respondent to pay the Complainant compensation in the sum of €22,000.00c (circa 1 year and 10 weeks wages).
Employment Equality Act 1998: CA-00003648: (b).
I have carefully considered the evidence and submissions made and in relation to this ‘victimisation’ element of the complaints under the 1998 Act and I have concluded as follows.
The Complainant states that following her indicating to the Respondent that she would be taking a case to the WRC under the 1998 Act of discriminatory, (pregnancy-related) dismissal and at an Appeal Hearing of her dismissal she was forewarned by the Respondent against her taking such a case and was advised that no other employer would want to employ her if she took such a case. She was submitting that coupled with the rejection of her Appeal against her dismissal constituted ‘victimisation ’ as defined in the 1998 Act.
In relation to this I note that the rejection of her appeal and the upholding of the Complainant’s dismissal and the outcome of both has already been dealt with and redress awarded to her in the complaints in respect of discriminatory dismissal above - accordingly it is neither appropriate or possible for me to consider that matter again or award redress twice for the same act (the dismissal) and I cannot do so.
However there still remains the question of the remarks made to the Complainant by the Managing Director at the Appeal in relation to the Complainant having informed or indicated to the Respondent her intention to bring a complaint under the Employment Equality Acts to assert and protect her statutory rights in the event that her dismissal went ahead and if this constitutes victimisation as defined in the Employment Equality Acts.
It is not in dispute what occurred in relation to these remarks to the Complainant by the Managing Director.
By letter of 18th November 2015, the Complainant informed the Respondent as follows:
“I have taken legal advice as I feel very aggrieved by the Respondent’s handling of this issue and I have been informed that I have a right of action for unfair dismissal on discriminatory grounds as it is clear my dismissal is pregnancy related, included because the (Respondent) have not treated me fairly in presenting all of the issues in a letter of dismissal after having kept a note of all these incidents without issuing a warning to me in anticipation of my ultimate dismissal. I have been informed that I can file a complaint with the Equality Tribunal and I intend to do so if I cannot reach a satisfactory outcome amicably. However, given the stress that would bring at a time when I am already upset and stressed, I would like to avoid that course of action unless it is necessary (….)
I am raising the above as a formal grievance and I ask that it be treated as such. Given my imminent date of dismissal I would ask that this be treated urgently as it is having a significantly stressful effect on me.
I look forward to hearing from you regarding the grievance meeting. I would hope that we can reach an amicable resolution and avoid costly and protracted legal proceedings.”
Subsequently at Stage 3 of the Grievance/Disciplinary procedure, the Appeal Hearing against the Complainant’s dismissal, held on 8th December 2015, this matter was raised by the Managing Director. At the end of this of this Meeting the Managing Director said to the Complainant that in his opinion, she would not be wise to take the matter (the dismissal} further as no other employer would want to employ her if she seen to be taking an action against the Respondent.
The Complainant viewed this as a direct threat by the Managing Director not to take a legal action under the Employment Equality Act 1998 against the Respondent to vindicate her rights and entitlements under the 1998 Act.
The Respondent states that the Managing Director was simply given advice to the Complainant as an employee of theirs as to what was in her best interests and he believed that he was entitled to give such advice to an employee.
I note that these remarks were made by the most senior manager in the Respondent directly to the Complainant and there is no doubt, nor was it suggested by the Respondent, that it was a casual or not fully thought out remark: it was a considered statement and it was made in the context of the Complainant informing of her intention to take a case/complaint against the Respondent for discriminatory dismissal under the Employment Equality Act 1998. There can be no doubt that it was designed and could only have been designed to deter or put the Complainant in fear of taking a case under the Employment Equality Act 1998 to vindicate her rights under that Act and I have concluded that it was in fact a threat to the Complainant to deter her from taking such a case.
Section 78(2) of the 1998 Act defines victimisation as follows:
“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by her or 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 to another employee for any of the purposes of this Act, or any enactment repealed by this Act
- an employee having been a witness in any proceedings under the Act or the Equal Status Act 2000 or any such repealed enactments.
- an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
- an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”
I am satisfied that the making of the threat by the Managing Director to the Complainant at the Meeting on 8th December 2015 constitutes ‘adverse treatment’ of the Complainant by the Respondent and I again note it is not in dispute that this threat was made to the Complainant by the Respondent after the Respondent had been informed by the Complainant by letter of 18th November of her intention to initiate proceedings against them by the Complainant. There can be no doubt of a direct connection between the threat made and the matters raised by the Complainant in her complaint under the Act and that it was a direct reaction to her complaint of discrimination under the Act. Consequently it is victimisation for the purposes of the Act.
I am satisfied that the Complainant was victimised contrary to Section 77(2) of the Employment Equality Act. I am further satisfied that the appropriate redress is an award of compensation. I have taken into account that I am obliged to provide a remedy that is not only compensatory, but is proportionate to the wrong suffered by the Complainant and that has a dissuasive effect. Having regard to these considerations I measure the amount of compensation that is fair and equitable is €6,500.00c and I require the Respondent to pay the Complainant compensation it that amount.
The total awards made to the Complainant is €28,500.00c.
For the avoidance of doubt, I wish to confirm that no part of these awards are in respect of remuneration or arrears of remuneration.
Organisation of Working Time Act 1997: CA-00003648-01:
I have carefully considered the evidence and submissions made in relation to the complaint made by the Complainant under the Organisation of Working Time Act 1997 and I have concluded as follows in relation to that complaint.
The Complainant submitted that the Respondent was in breach of her rights and entitlements under Section 12 of the 1997 Act in relation to rests and intervals (breaks) at work.
The Complainant said that on occasion she did not receive a full 30 minute lunch break, receiving (slightly) less than the full 30 minutes required in accordance with the provisions of Section 12(2) of the 1997 Act and she pointed out that the records submitted by the Respondent confirmed this fact.
The following was established at the Hearing. All employees clocked out and back in again for their lunch breaks. The Complainant’s clocking records did in fact demonstrate that on some occasions she was not clocked out for a full 30 minutes, being a few (2 or 3 minutes} less. It was also established that production ceased during the break period and that accordingly whatever else the Complainant may have been doing during the 30 minute break she could not have been working.
I note that the Labour Court in case of DWT 6/2014 Graphical Print & Media Union -v- The Tribune Printing & Publishing Group the Court stated that: “An employer is under a positive duty to ensure that employees received their breaks. Merely stating that employees could take rest breaks if they wished and not putting into place procedures to ensure that the employee receives those breaks, thus protecting the employee’s health and safety does not discharge that duty.”
In the instant case the Respondent made specific arrangements for the taking of breaks by the Complainant and her colleagues, setting specific times for the taking of such breaks and arranging for employees to clock out for such breaks in order that they could be monitored and in addition they arranged for production to stop to facilitate breaks and to ensure that employees would not be working during them. I am satisfied and I find that this is in full accordance with the above Determination and fully discharges the Respondent’s obligations under Section 12 of the 1997 Act in relation to rests and intervals (breaks) at work.
Based on this foregoing finding I decide and declare in accordance with Section 27 of the 1997 Act that the complaint in relation to rests and intervals (breaks) at work in accordance with Section 12 of the 1997 Act is not well founded; it is rejected and it is not upheld.
Dated: 1st August 2018
Workplace Relations Commission Adjudication Officer: Seán Reilly.
Key Words: Discrimination on grounds of gender and failure to afford breaks at work.