ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022633
A Pharmacy technician
Brian O' Meara
O'Meara & Co. Solicitors
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: 20/01/2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
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.
This is a claim for unfair dismissal in the context of the Complainant having advised the Respondent that she was pregnant during her probationary period.
Summary of Complainant’s Case:
The Complainant’s case is that she was offered a job by the Respondent on the 6th of November 2018. At the time she was pregnant and was advised that she did not have to disclose her pregnancy to her new employer. She did not do so. She accepted the job and began working on the 19th of November 2018. Her contract of employment contained a three-month probationary period.
On the 8th of December 2018 the Complainant advised the Respondent that she was twenty-five weeks pregnant. Her evidence was that he was extremely angry with her. He stated that it was extremely dishonest not to have disclosed her pregnancy during the interview stage.
On the 24th of December 2018 she was informed that there would be a review meeting when she returned after the Christmas break. This was promised on three to four occasions, but nothing ever took place.
The Respondent organised a meeting with her on the 17th of January 2019 after close of business. At the meeting the Respondent informed the Complainant that he was deeply hurt over her failure to disclose her pregnancy and that he had decided to let her go.
The Complainant was in complete shock considering it was almost six weeks since she had notified him of her pregnancy. The Respondent stated that the main reason he was letting the Complainant was that he felt he she was dishonest. The Respondent stated that he “hadn’t any problems with the tills since she started”. It was decided that the Complainant would finish work on the 26th of January 2019. She requested her holidays to be paid to the 31st of January 2019.
The Complainant received a letter of termination of employment on the 19th of January 2019. The letter of termination was furnished to me. It was headed Appraisal Meeting 17th of January 2019 and Termination of Employment.
There was no witness at the appraisal meeting, it was just the Complainant and the Respondent. The letter set out that the Respondent had “expressed his deep hurt and dissatisfaction over the Complainant’s failure to disclose that she was circa five to six months pregnant when she applied for the position”. The Respondent stated that it was “a deceitful act”.
The letter went on to state that the revelation in December that she was pregnant came as “a shock and an insult”. The Respondent questioned the Complainant’s trustworthiness and honesty. He stated that her actions illustrated to him that she would make a decision based on her own requirements and disregard those of others including the pharmacy business. The letter stated that he tried over the past month or so to disregard the “foul play”, to try and forget the incidents and to give the Complainant a “fresh chance”. The letter however stated that they proved impossible for him to overcome. He stated that he was unable to dislodge the issues from his mind. He claimed that his behaviour in his own pharmacy changed negatively when she was working there. He failed to connect with her to the level he did with his other staff. He believed this was due to “the deep hurt he felt at her deceit”. The letter stated that after a short discussion regarding work practices and experience, he felt he had no choice but to terminate her employment. The termination of employment date was the 31st of January 2019.
The Complainant set out that the Respondent’s submission to her claim was a last-ditch attempt to justify her dismissal by attacking her capability, competence and qualifications, none of which were set out in the letter of dismissal. The Complainant explained that she had worked in a pharmacy since she was sixteen years of age and she was aware of the legal obligations of the pharmacy owner. She was most aggrieved by the attack on her professional conduct by the Respondent. She maintained that the Respondent at no stage brought this to her attention during her employment.
The Complainant completely rebutted the statement of the Respondent that her experience was not as good as he expected, that her knowledge was lacking, or her daily performance did not justify her wages. She explained that none of these issues were brought to her attention during her employment. She confirmed that there was no discussion regarding work practices in the meeting of the 17th of January 2019.
Later in the hearing, the Complainant did agree that the Respondent did treat her very well during her employment with him, but he only vaguely mentioned any issues that he had with her performance.
The Complainant agreed that she did accept the termination of her employment at the time as she had no other alternative or choice. The Respondent was the employer and he was the decision maker.
As regards section 7(2)(c) and mitigation of her losses, the Complainant gave evidence that she was on maternity leave from the 1st of February 2019 to the end of August 2019. Her baby was born on the 23rd of March 2019. In October 2019 she started a course to qualify as a special needs assistant. She was on work experience at the time of the adjudication hearing and was hoping to take up work shortly thereafter.
She said she was unable to return to pharmacy work due to her experience with the Respondent and decided to take a total change in her career. She said that the whole experience with the Respondent had left a negative mark on her.
Summary of Respondent’s Case:
The owner of the Respondent directly gave evidence. He put forward a full defence to the complaint.
His case was that his was an independent pharmacy with an exemplary record with his staff. He confirmed that he employed seven people. He described his pharmacy as friendly, caring and empathetic. He explained how his team was wonderful to work with, had great compassion and positivity and was awarded a national award in 2015.
His evidence was that the Complainant approached him seeking a position in the pharmacy. He did have a vacancy and had planned to advertise the vacancy. As Christmas was just over one month away and with the Complainant’s pharmacy experience, the Respondent made a quick decision to offer her the position with a probationary period of three months. He had received a positive reference from a previous employer of the Complainant.
The Respondent explained that during the Complainant’s employment he was concerned as on several occasions she overstepped her knowledge. He would have to interject and reposition the advice given by her. She continued to issue incorrect advice and was failing to adhere to his direction and guidance. It began to trouble the Respondent that the Complainant was failing to grasp the magnitude of the problems that misinformation could cause. He instructed her to be careful and not to overstep her knowledge and that he was happy to train her as a healthcare assistant. He remained hopeful that she would listen and improve.
The Respondent explained how it became noticeable that the Complainant was often missing from the shop floor and that toilet breaks were becoming more frequent. He explained that he noticed a change in the working atmosphere in the pharmacy especially when the Complainant was working. He observed that long standing staff and the Complainant were” not gelling together very well”.
The Respondent explained that he was consciously and actively trying to generate good rapport and communications among all the staff. However, he noted that the Complainant seemed aloof and distant and this created a coldness within the team. He also contended that the Complainant’s performance was not as good as he expected. He noted her knowledge was lacking and that a lot of training would be required. Her daily performance and productivity were not justifying her wages relative to that of her colleagues.
The Respondent refuted the description that he was extremely angry when he was advised of the pregnancy. He explained that he was a calm and considerate person. The Respondent was aware that the Complainant had lost both her parents a short time before her employment by him. He knew she had only returned to Ireland from working abroad and as her husband wasn’t working she was the sole provider for her family.
He stated the fact that the Complainant withheld the disclosure of her pregnancy to him was “disappointing”. Her pregnancy was “a setback for him in the terms of the time the Complainant would possibly be absent for maternity leave assuming she successfully completed her probation period”. He stated that good pharmacy staff are not easy to find, and the Complainant not only had experience but also lots of ability.
The Respondent explained that the Complainant’s review was set for the end of the three-month probationary period. The Respondent set out that “the foundation of any employment is honesty of words and action”. He believed the Complainant was in a difficult situation and withheld her pregnancy to prevent mitigating her employment potential. He stated that “it created a snowball effect once exposed”. The Respondent set out how the Complainant was forced to conceal her pregnancy for the first number of weeks and once it was revealed the mistruths and deceptions affected how she was received by her work colleagues and the Respondent himself. Each new utterance was an unknown, was it a truth or another deception and that was the crux. The Respondent set out “it was not the pregnancy, but the deception and the acts and words used to achieve it that was the issue”. This affected everyone and the atmosphere in the working environment.
The Respondent stated that the Complainant did not wish to heed his knowledge or work practices. The Complainant’s referee had informed him that the Complainant had been the chief health care counter assistant. However, within his pharmacy this was far from the case. He explained that the Complainant seemed to ignore his requests regarding work practices and these were discussed during the interview meeting on the 17th of January 2019. He had brought the meeting forward due to his dissatisfaction with the Complainant’s unsafe work practices, her refusal to follow direction and her lack of cohesion within the team. The Respondent gave evidence that the reason that he did not set out these in the letter of termination was that he “did not wish to degrade or belittle the Complainant and especially not in writing”. He pointed out that he fleetingly mentioned them in terms of “other issues”. He said he knew he could have included them in the termination letter and stated that he could have included the numerous incidents and performance concerns in the termination letter. He acknowledged that the letter was naively written.
The Complainant had been working outside of the retail pharmacy industry for a period of three and a half years. The Respondent gave an example of three changes in pharmacy practise during this time. He gave evidence that he had to interject with her advice on a few occasions. He felt that she was watching him all the time after she disclosed her pregnancy to him.
The Respondent stated that he was unsure about what the Complainant said to him. This was due to her being deceitful to him regarding her pregnancy. He needed her to be open with him.
The Respondent’s representative raised the Complainants requirement under Section 7(2)(c) of the Unfair Dismissals Act 1977 as amended to adopt measures to mitigate her loss. He pointed out that it was the Complainant’s choice not to seek work in the retail pharmacy industry, but to retrain in a different career and that her losses from the end of August 2019 to the date of the hearing were due to same.
Findings and Conclusions:
I am conscious that this is an Unfair Dismissal pursuant to the Unfair Dismissals Act 1977 (“the Act”) as amended. The Complainant was unrepresented at the hearing.
I have considered the evidence presented to me in writing and orally at the hearing and reflected on same.
For a complainant to have locus standi to make a complainant under the Act, service of twelve months is required with the employer at the date of dismissal. The Complainant had less service than this at the time of her dismissal. However, the Act at Section 6(2) provides that where the alleged reason for dismissal was pregnancy related, a dismissal is unfair within the meaning of the Act regardless of the length of service with the Respondent.
My role is to determine whether the reason for the Complainant’s dismissal was her pregnancy. If that was the reason for dismissal, then by operation of law the dismissal was unfair.
The fact of dismissal was not in dispute. The fact that the Respondent was aware of the Complainant’s pregnancy was not in dispute.
I was presented with what can only be only described as a most judgemental letter from the Respondent setting out the grounds for the termination of the Complainant’s employment. The Respondent attempted to separate his reasons for dismissal from the Complainant’s pregnancy. With the benefit of hindsight, the Respondent himself admits that the letter was naively written. That being said, it was not written in the heat of the moment. It was written some nine weeks after the Complainant had notified him of her pregnancy and his first reaction to her disclosure. The Complainant had no obligation to disclose her pregnancy to the Respondent when she applied for a job. Reading his letter on an objective basis, I cannot agree with any of his submissions. Therefore, in all aspects, I prefer the evidence of the Complainant.
The Respondent claimed that it was not the pregnancy, but the deception and the acts and words used to achieve it that was the issue. I find that you cannot separate the two. It is clear that reason for the Complainant’s dismissal was related to her pregnancy.
I am satisfied the Complainant has shown that I have jurisdiction in this matter. She has shown to me that her dismissal was on the balance of probabilities wholly or mainly related to her pregnancy or related thereto.
In addition, the Complainant has an implied contractual right of fair procedures. If it was the case that the dismissal was performance related then the Respondent should have gone through an engagement process with her well before her probationary period was due to expire outlining what was required of her, what improvements were expected and identifiable objectives she needed to achieve. He should have outlined what assistance he would provide to her in helping her to achieve those objectives and even considered extending the probationary period with the consent of the Complainant. There was no evidence that any of this process was undertaken by the Respondent.
I conclude that compensation is the appropriate form of redress. I considered that the facts of this case are particularly unfair and at the higher end of the scale. The object of compensation is to make reparation fully for the loss suffered by a dismissed employee.
The Complainant’s salary with the Respondent was a gross income of €28,184.00 per year. Her evidence was that she suffered financial loss arising from her unfair dismissal. This qualifies her for redress under section 7 (1)(c)(i) of the Act.
I note the Complainant has not secured employment at the date of the hearing. Her evidence was that it was the Respondent’s conduct that led her to leave the retail pharmacy industry. She was hoping to find work following the hearing. I found her evidence to be credible as regards same and I have taken same into account in the quantum awarded.
The statutory maximum of 104 weeks remuneration is the limit of compensation that I can award in this case.
Applying Section 7(2)(a) of the Act and to be just and equitable in the circumstances of this case, I award the Complainant compensation of seventy-six weeks remuneration amounting to €40,000.00. This amount is taxable in accordance with the normal Revenue rules on termination of employment.
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.
The complaint is well founded.
I award the Complainant circa seventy-six weeks remuneration amounting to €40,000.00.
Dated: June 10th 2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Pregnancy related dismissal. Less than 12 months service. Section 7(2)(a) of the Unfair Dismissal Act 1977.