ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017794
Peninsula Group Limited
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 11/02/2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant was employed as an engineer with the respondent from 15 May until her dismissal on 11/09/2018.Her gross, monthly salary was €3,750.
Her complaint is that she was unfairly dismissed on 11/09/2018 due to her pregnancy.
She submitted her complaint to the WRC on 31 October 2018.
Summary of Complainant’s Case:
The complainant maintains that she was dismissed on the basis of her pregnancy.
The complainant accepts that her employment as an engineer commenced with the respondent on 15 May 2018 on K site.
The complainant discovered that she was pregnant on 7 August. Her expected date of delivery was 12 April 2019. She told Mr. G, site manager, of same on 9 or 10 August. She assumes that Mr G told Mr M, the respondent director, about her pregnancy as they would have to have done a Health and Safety check. She did not request a Health and Safety check.
The complainant was certified as unfit to work due to a pregnancy related illness from 27 August to 10 September. The complainant emailed the respondent director on the 27 August advising him that she was pregnant.
On September the 10th, 2018 the doctor certified her as unfit for a further three weeks’ sick leave. The complainant tried to arrange a meeting with the manager several times and finally got to meet him on September the 11th 2018. She wanted to notify him that she was unfit to work for a further period. The complainant also wanted to ask if a change in her role was possible since working as a Site Engineer might be hazardous for her pregnancy. But to her surprise and shock the respondent handed her a letter of dismissal letter dated the 17th of August 2018 (backdated) at this meeting on the 11 September. She received no forewarning of the purpose of the meeting. The respondent stated that he took the decision before he knew she was pregnant. However, she was working on the 17th of August and did not get any official warning beforehand, nor verbal or written warning . The respondent amended the date on the dismissal letter to read the 11 September.
The complainant argues that for a dismissal to be deemed fair she should have been made aware of the standard expected of her. If her performance fell short of the standard required, this should have been explained by way of a formal procedure and a reasonable time frame allowed to achieve the required improvements. Instead of dismissal she could have been issued with a final warning alerting her to the fact that dismissal was a possibility
Concerning the issues presented to her as reasons for her dismissal, she contends that the errors with the manholes happened in February or March while assigned to another project which the respondent supervised.
She had been supervised by Mr G and Mr M for the period January – May, on another site, yet they raised no concerns. She believes that the problems which they identified to her in September 2019 were sorted by May 2018.
She did not appeal against the decision to dismiss her as English is not her mother tongue and she was unwell at the time. Furthermore, she was concerned that it would affect her professionally.
She signed a copy of the contract with handbook attached. But she was not provided with a copy of same.
Mr M, the respondent director did not raise any concerns with her to indicate that her continued employment was at risk. On the occasion of one mistake the site manager, Mr. G told her that everyone makes mistakes. The respondent director told her she was a great engineer in May when she stated other employees were earning more than her. The respondent paid for IT training for her. They also gave her a pay rise.
She was put in charge while the site manager was on holidays from 20-27 August. She argues that this contradicts the respondent’s portrayal of her as an engineer who makes a lot of mistakes.
The complainant accepted that 19 of the 22 problems with the project, identified to her in the respondent’s letter of 11 September did happen but they were not all her fault. So, for example concerning the problem with the block work, she was not told of this at the time. She had no experience in this type of construction. Concerning the in correct height of the first floor of the building, the complainant states that she was not told what was required.
She was happy on K site.
Until the adjudication hearing, the complainant had no knowledge of the emails exchanged between the respondent and the HR company/ representative disclosing the respondent’s request for assistance in terminating her employment.
The complainant was unfit to work from 10 September to 1 October. She took up employment on 22 October 2018 and earns €37,500 per annum.
Summary of Respondent’s Case:
The respondent is a construction company.
The respondent denies that the complainant was dismissed due to her pregnancy. The reason for the dismissal was the complainant’s failure, within her probation period, to demonstrate her suitability in the role, her failure to operate independently within the role and her failure to carry out the required supervisory functions.
It is common case that the complainant does not have one year’s service.
A complainant does not need to show one year’s continuous service if they fall within the terms of section 6(2)(f) of the 1977 Act which provides:
‘(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(f) the employee’s pregnancy…’
If the complainant does not fall within section 6(2)(f) of the Unfair Dismissals Act, she is not entitled to any redress under that act.
The only matters to be decided therefore are:
a. Whether her dismissal resulted wholly or mainly from her pregnancy;
b. If so, what redress is due
Was the dismissal due to the complainant’s pregnancy?
The respondent submitted evidence that the decision to dismiss the complainant was made at least 2 weeks’ before it was on notice of the complainant’s pregnancy. She informed the respondent on the 27 August of the pregnancy. But the evidence written and oral supports the case that the decision to terminate was in motion on 3 August.
Evidence of respondent managing director, Mr. M.
The complainant was employed by the respondent as a Site Engineer between 14 May 2008 and 14 September 2018 on a probationary contract. At the time it was difficult to get staff for the construction industry. She seemed competent in IT skills and this skill set was seen as an asset for the company.
The complainant signed a contract of employment. She was advised to read the handbook which included the policy concerning probationary periods of employment and was told that a copy was available for her.
The complainant worked on 3 sites but in the main was employed in K site. One project was held up due to her mistakes. There were difficulties evident in the topography- her description of the physical features of a site. Another problematic area was the complainant’s errors in, for example, the global positioning system. Her analyses were well outside the normal margin of error. The complainant worked on the construction of a power facility. Her initial measurements of poles had to be reduced by 300 ml. as she had exceeded the height set by the consultant engineer. The drainage systems were placed at an incorrect depth below the surface of the road.
There were issues with another site, D site. the complainant gave an incorrect assessment as to the time required to do work. The respondent had to engage an external company to assess needs for D site and there were discrepancies between the complainant’s assessment and that of the external company. There were no issues with S site. She did a good job there.
The site engineer, Mr G., advised Mr. M that there were problems with the complainant’s work. At the beginning you give a new employee some slack.
Mr M submitted a letter dated 11 September, originally drafted on 17 August. He said that the 22 problems identified with her work on a particular site were untypical of a site engineer.
The respondent submitted an email sent to the HR company on 3 August advising that he wished to let her go, seeking advice as to how to do this and expressing regret as she was a likeable person. Prior to contacting the HR company on the 3 August, the respondent supervised her work and gave feedback. The HR company emailed a response on the same day expressing regret that it hadn’t worked out. They suggested 2 options, one was a probationary review, the other was a short-service dismissal. The respondent states that it was his fault in the delay in communicating with the complainant, but he was very busy after his contact with Peninsula on 3 August-and communicating with the complainant. He has few administrative staff, the site engineer was on leave from 20-27 August and the complainant was on sick leave from 27 August.
Before the respondent sought the assistance of the HR company on terminating her employment, he did raise the GPS issue with her. She used an imperfect tool for measurement and he conveyed this to her 2 months before her dismissal. She specialised in topography. That was the respondent’s specific requirement. They had to engage a person to do remedial work and there was a cost to the company.
Mr M embarked on the dismissal option. Twenty-two construction errors/issues of concern were put to the complainant in a letter at the meeting of the 11 September. This meeting was an unpleasant experience as he found it difficult to have to inform her of the planned dismissal. She was taken aback by his statement to her. Mr M offered her an appeal. She did not exercise this option. She did not deny that these problems had arisen. The complainant agreed that she was not suited to site work and accepted that she had made many mistakes. The complainant was dismissed at this meeting.
It is submitted that the Complainant’s dismissal resulted wholly from her failure to perform her role to the required standard and the decision to dismiss was made at a time when the Respondent did not know the complainant was pregnant.
The complainant is not otherwise entitled to redress under the 1977 Act and her claim must therefore fail.
In the event that the adjudicator finds that the complainant was unfairly dismissed (which is denied) it appears that the complainant has only accrued three weeks’ losses (given that she was given an ex gratia payment of 2 weeks’ wages as a gesture of goodwill). Without details of any ongoing losses or issues relating to fitness to work, the respondent calculates this loss at a maximum of €1,231.39
Findings and Conclusions:
I am required to establish if the dismissal was pregnancy related and contrary to section 6(2)(f) of the Unfair Dismissals Acts 1977-2015, a provision which extends jurisdiction to complainants with less than 12 months service where the dismissal is wholly or mainly due to the pregnancy.
The burden of proof lies with the employer to prove on the balance of probabilities that the dismissal was unrelated to her pregnancy.
The dismissal of an employee by reason of her pregnancy, regardless of the duration of employment shall be deemed, for the purpose of the Act, to be an unfair dismissal.
Of crucial importance is which came first- the decision to dismiss or the notification of the pregnancy. The complainant’s own evidence is that she told the site manager on the 9 or the 10 August. She informed the respondent director on the 27 August. But the evidence written and oral supports the case that the decision to terminate was in motion on 3 August. The respondent ‘s email to the HR company representative, in attendance at the hearing, read
I am writing seeking advice please. T, (the complainant) has not progressed in her role. We are constantly having to push her to do tasks that she is meant to do as part of her day.
I have made the decision to let her go. I take no pleasure in this as she is pleasant and mannerly
I have made no one aware of this decision.
I want to do it through proper channels. I would greatly appreciate your help.”
While the complainant went through a lot of anxiety about her pregnancy having miscarried earlier, the question for determination is whether her pregnancy was the causative factor in her dismissal. I am struck by the fact that the concerns about the complainant’s performance barely surfaced before she was notified of her dismissal, but on the other hand I find that the correspondence and the verbal evidence, corroborated by the advising HR representative in attendance at the hearing demonstrates that the earliest the respondent could have been on notice was the 10 August. Yet it is clear that the decision to dismiss was made on 3 August. She accepted 19 of the 22 issues identified to her as the cause of her dismissal did occur.
The Labour Court held in Synergy Security Solutions v Anna Dudeck, UDD1853 that
“while Ms Dudek disputed the issues raised by Synergy and stated in evidence that no matters of significance were raised with her such that she was advised of any risk to her employment; it was not for the Court to consider the fairness or otherwise of the decision to dismiss or to consider the procedures employed by [Synergy] in arriving at that decision if the dismissal was not by reason of pregnancy”.
Based on the reasons cited above and the evidence adduced by both parties, I do not find that the complainant’s dismissal was wholly or mainly due to her pregnancy. This precondition is necessary to earn the protection of section 6(2)(f) of the Unfair Dismissals Act 1977-2015.
In accordance with section 2(1) (a) of the Act, I do not have jurisdiction to decide on this matter.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I do not have jurisdiction to hear the complaint.
Dated: 6th August 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Pregnancy related dismissal.