ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010478
Community Development Officer
Family Resource Centre
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 09/12/2019
Workplace Relations Commission Adjudication Officer: Brian Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following 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 commenced employment as a Community Development Officer on 1st November 2016. Her annual salary was €16,335.80. She was notified of the termination of her employment on 9th March 2017, which was confirmed in writing on the 14th March 2017. The Complainant lodged the present complaint with the Commission on the 13th September 2017. A hearing in relation to these matters was convened and finalised on 9thDecember 2019.
At the outset of the hearing, the Complainant’s representative withdrew the complaint under the Unfair Dismissals Acts and pursued the complaint under the Employment Equality Acts only. This complaint alleged that the Complainant was discriminatorily dismissed on the grounds of gender.
Given that the nature of the Complainant’s role and the vulnerable nature of the persons she interacted with, it was agreed that the parties would be anonymised in the published decision.
At the outset, the representative for the Respondent submitted that the complainant was lodged in excess of six months from the date of the final act of discrimination and consequently was statute barred.
In response, the Complainant submitted that the last date of discrimination occurred within six months of the lodgement of the complaint form and as such the complaint was submitted in time. In the alternative, and without prejudice to the foregoing, the Complainant submitted that she could establish “reasonable cause” to extend the relevant period for the lodgement of the claim.
Regarding the last date of discrimination, the Complainant was informed of her dismissal (being the alleged discriminatory event) verbally and in person on the 9th March 2017, the day following a disciplinary meeting. This was confirmed, and the rationale for the dismissal expanded upon, by correspondence on 14th March 2017. Given that the complaint form was lodged on 13th September 2017, the present complaint is in time if the correspondence represents the final act of discrimination, whereas reasonable cause would have to be demonstrated if the initial communication of the dismissal represents the final act of discrimination.
In support of their position, the Complainant submitted that the dismissal letter clearly states that dismissal was to “take effect immediately” and that one weeks’ notice was to run from that point. She further submitted that she was paid until the 21st March, at which point her employment effectively terminated.
By response, the Respondent presented evidence from the persons that drafted the correspondence to the effect that they read a draft copy of the correspondence to the Complainant on the 9th March and issued with same, without any significant alteration, on the 14th March.
In the matter of Cast v Croydon College  ICR the UK Supreme Court held that,
“a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.”
This case was cited with approval by the Labour Court in the matter of Beaumont Hospital -v- Petty Kaunda EDA 1930. Here, the Court held that the presentation of interview notes after the fact did not constitute a further act of discrimination as there was no such “further consideration” of the alleged discriminatory act as outlined above.
In the present case, it is clear that the decision to dismiss the Complainant was made prior to the meeting of the 9th March. I also accept the evidence of the Respondent’s witnesses that the rationale for dismissal on this date was the same as when the correspondence confirming the same was drafted five days later. Notwithstanding the witness evidence in this regard, there is no logical reason why the person that made and communicated the decision to dismiss would engage in further consideration of the same in the absence of further facts or evidence.
In light of the foregoing, I find that the last date of discrimination was 9th March and that the complaint was lodged in excess of six months from the same.
In this regard, Section 77 (5) of the Acts provides:
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction and where such a direction is given , this part shall have effect accordingly.
In the matter of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 the Labour Court described the test in respect of establishing “reasonable cause” as set out above in the following terms,
“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”
In evidence, the Complaint stated that following her dismissal she felt exhausted and anxious in relation to the procedure adopted in effect in effecting her dismissal. She also stated that her focus at that time was on her pregnancy and ensuing the health of herself and her child. In support of this position, the Complainant exhibited numerous items of correspondence from various medical practitioners corroborating the difficulties she outlined.
In the circumstances, and having reviewed the totality of the evidence as presented, I find that the Complainant has both explained the delay and offered an excuse for the delay as outlined above. I find that she has established “reasonable cause” to extend the relevant period as outlined in Section 77(5)(b) above. Consequently, I find that the matter has been referred within the relevant time-frame and I may assume jurisdiction to decide the substantive complaint.
Summary of Complainant’s Case:
The Complainant commenced employed as a part-time Community Development / Family Support worker on 1st November 2016. At the commencement of her employment, the Complainant was in the early stages of pregnancy. The Complainant alleged that she began to experience difficulties with her immediate line manager shortly after the commencement of her employment. In particular, the Complainant referred to an incident whereby she was informed that she was not physically working hard enough at an event. Later the day the Complainant reluctantly informed her line manager of her pregnancy.
In early January 2018, the Complainant’s line manager arranged a review meeting. In the course of this meeting, the Complainant raised issues regarding the volunteers that would assist the Complainant with some of the youth group and suggested some procedural changes that might be made in relation to their interactions.
On the 23rd January, the Complainant was asked to attend a meeting with her line manager. In the course of this meeting, the Complainant’s line manager advised that a number of items had arisen that required investigation. Firstly, it was alleged that the Complainant’s sister was permitted to give a class without Garda vetting. By response the Complainant confirmed that her sister did have Garda vetting and was fully qualified to give the classes. Secondly, it was put to the Complainant that she had sent volunteers home from youth group. This was denied by the Complainant, with an explanation that she had informed certain volunteers that they would not be required well in advance of the youth group. Finally, it was alleged that the Complainant sought to prevent certain information from being passed to the management of the Respondent. This was again denied by the Complainant, who explained that she had requested certain trivial information regarding snacks etc. not to be shared in advance to avoid disappointment in the event of a change of plans.
Later that day the Complainant commenced a period of sick related absence, returning to work two days later, 25th January 2017. The following day, the Complainant was invited to another meeting whereby she was informed of two others issues that had arisen. It was alleged that the Complainant sought to prevent certain information from being passed to the management of the Respondent. This was again denied by the Complainant, who explained that she had requested certain trivial information regarding snacks etc. not to be shared in advance to avoid disappointment in the event of a change of plans. The fourth, and most serious allegation, alleged that the Complainant “roared” or “screamed” at a child the previous December. The content and nature of this allegation caused the Complainant significant distress and was absolutely denied in this meeting and at all times. By response, the Complainant did state that she would raise her voice during the youth groups as these occurred in a large sports hall but she absolutely denied that she “roared” or “screamed” at an individual child. Following this meeting, the Complainant again commenced a period of certified sick leave.
During this period of sick leave, the Complainant was invited to a welfare meeting on 13th February 2017. Whilst the Complainant anticipated that this meeting would focus on her health issues, instead it quickly became apparent that it was in fact an investigation meeting and the allegation were again discussed and denied by the Complainant. In the course of this meeting, the Complainant’s line manager advised that if she was to resign she would be provided with a reference in due course.
The Complainant returned to work on 6th March. On this date she received a letter advising that she was required to attend a meeting on the 8th March 2017. While this correspondence referred to various documents that would be used in meeting, these were not in fact disclosed. During the course of the meeting, the Complainant offered her explanation for the first three allegations and again denied the fourth allegation entirely. When asked about the two witness statements outlining the issue she stated that she believed that the parties were in a relationship and had consulted each other in relation to the content of the same. The Complainant also raised issue regarding the fact that the alleged incident occurred in early December but was not reported until late January.
The following day, the Complainant attended a meeting whereby she was informed that her employment was to be terminated on the grounds of gross misconduct. This was later confirmed by correspondence dated 14th March 2018.
In evidence, the Complainant stated that she believed that the matter had not been fully investigated. She stated that a there were numerous other parties that were present and could have been interviewed. She also stated that the child in question could have been interviewed, as would be the normal case in a child welfare investigation. The Complainant also denied the allegations, and in particular the fourth allegation in full. She raised issue with the two witness statements alleging that she had shouted at the child, stating that it was apparent that there was a degree of collaboration in respect of these and that the authors of the same were known to be involved in a personal relationship. She also queried as to why this alleged misconduct was not reported for almost two months after it had occurred.
In answer to a question, the Complainant stated that she did not appeal the sanction of dismissal as she felt the stress of the matter was causing medical issues for herself and her unborn child. When asked if she ever conceded that she shouted at a child, the Complainant re-stated that she was naturally soft spoken and would have to raise her voice to be heard in a busy sports hall. Notwithstanding the same, the Complainant absolutely denied that she had “shouted”, “roared” or “screamed” at an individual child at any time.
In summary, the Complainant stated that she felt she had been dismissed due to her pregnancy and the complications that this would cause for the Respondent.
Summary of Respondent’s Case:
At the outset, the Respondent absolutely denied that the dismissal of the Complainant had anything to do with the Complainant’s pregnancy but was instead due to a serious misconduct committed by the Complainant.
The first issue arose when the Complainant’s line manger discovered a payment to an unknown person whist she was completing a financial reconciliation. On further investigation the Complainant’s line manager discovered that this cheque was made payable to the Complainant’s sister for a fitness class. This caused concern for the Respondent this person did not have any Garda vetting on file and it was unclear what, if any, qualifications she had to provide fitness classes.
On 23rd January the Complainant’s line manager met with her to discuss this issue. Prior to this meeting, some volunteers raised issue with the fact that the Complainant sent them home early from certain groups. After the meeting whereby both of these matters were discussed, the Complainant advised that she wished to go home as she was unwell.
In the Complainant’s absence the investigation into the two issues above continued. As part of this investigation the Complaint’s line manager arranged meetings with the volunteers to establish if they were ever sent home. During one of these meetings, a volunteer (WC) disclosed another, more serious allegation. He alleged that the Complainant “screamed” at a child in his presence, leaving him visibly shaken. When asked why he did not bring this to management’s attention until this point, WC stated that he was unaware of the manner in which this should be done.
On foot of this information, the Complainant’s line manager met with the other volunteers that were present that day. A second volunteer (KD) confirmed that she witnessed the incident in question. A third volunteer (FK) stated that he was approximately 15 minutes late and that he did not witness anything unusual for the rest of the time. The Complainant’s line manager also spoke with a basketball coach who confirmed that he was in another part of the hall and would not have witnessed anything.
On 26th January the Complainant’s line manager met with her to discuss these issues. During the course of the meeting, the Complainant became extremely agitated and asked to leave early. Although the Complainant initially denied the fourth allegation, she later stated that she did raise her voice as she had to do so to be heard. She also expressed concern that she might be dismissed for this action.
As the Complainant had commenced a period of sick leave immediately after this meeting, the Respondent arranged a welfare meeting for 13th February. Although the purpose of this meeting was to discuss the Complainant’s wellbeing and facilitate her return to work, the Complainant insisted on discussing the ongoing investigation and used it as an opportunity to present a defence in relation to the same.
On the 8th February the Complainant was invited to a disciplinary meeting, chaired by two members of the Board of Directors. Following a consideration of all the evidence, the directors decided that the Complainant’s conduct warranted the sanction of dismissal. The Complainant elected not to appeal this sanction despite the same being expressly offered to her.
In evidence the Complainant’s line manager denied that she reprimanded the Complainant for not working hard enough. She also stated that on hearing the news of the Complainant’s pregnancy she congratulated her and arranged a risk assessment in respect of her role. In answer to a question, she advised that was initially concerned by the amount of time that elapsed between the alleged incident and the reporting of the same. Nonetheless, the Complainant did state that she discussed this with the volunteer and an explanation was provided. When asked why she didn’t speak to the other persons present, the Complainant’s line manager advised that she was satisfied that she spoke with all parties present. When asked why she did not speak to the child in question, the she stated that she contemplated this, but decided that it might cause difficulties for the child in question. She further confirmed that speaking with the child would be standard procedure if there was an allegation of mistreatment. The Complainant’s line manger confirmed that this matter had not been reported to any child protection agencies. In answer to a question, the Complainant’s line manager confirmed that she didn’t suspend the Complainant as she was on sick leave for the majority of the investigation.
In evidence WM read and confirmed his witness statement. He also stated that there was no collusion between and the author of the other statement. He confirmed that he and the author of the other statement were previously involved a personal relationship and cohabitated at the time the statements were drafted. In answer to a question he confirmed that he was aware of reporting procedures in respect of child protection issues. When asked why he did not utilise these at the appropriate time he stated that the shock of the event took a while to process. In answer to a question stated that he believed that the incident in question occurred approximately half way through the session.
In evidence KD also read and confirmed her witness statement. She also confirmed she was aware of the reporting procedures and denied that there was any collusion between herself and the author of the other statement.
In evidence the Board Member (being the person that made the decision to dismiss) stated that he considered that matter carefully but that dismissal was the only option open to him. This was based on the fact that two independent witness statements corroborated the incident in question and the Complainant herself conceded the wrongdoing in question. Given the gravity of the allegations he went back and spoke to the witnesses who confirmed their statements. The Board Member also stated that the dismissal of the Complainant had nothing to do with her pregnancy. In answer to a question the Board Member confirmed that he did not provide the second set of witness statements to the Complainant. He further stated that of the four allegations, the one that related to the screaming at the child was the most serious and that this was in effect what the Complainant was dismissed for. In answer to a question the Board Member stated that he and the other board member discussed the application of a lesser sanction but given the gravity of the fourth allegation in particular, dismissal was the only option in the circumstances.
Findings and Conclusions:
The Complainant has alleged that her dismissal constituted discrimination within the meaning of the Acts. It has been alleged that this discrimination occurred on the grounds of her gender, specifically the fact of her pregnancy during the disciplinary process and on the date of dismissal.
In the case of Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum)  ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender.
Section 85A of the Acts provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming within its ambit.
In the matter of Southern Health Board -v- Mitchell, the Labour Court held that,
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”
In relation to this burden of proof in matters involving a specific allegation of pregnancy related dismissal, Bolger, Bruton and Kimber have stated that,
“The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established 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 grounds of the pregnancy.” (Bolger, Bruton and Kimber in Employment Equality Law -Round Hall Press 2012, Section 2-222)
In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty & Helen Ahern EDA195, the Labour Court set out the protections afforded to pregnant women in the following terms,
“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.
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.
The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.
In Case 406/06 Paquay v Société d'architectes Hoet + Minne SPRL  ECR 1-8511, the Court pointed out that in accordance with its case law the prohibition of less favourable treatment, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive.
The importance of providing real and effective redress in cases where the rights of pregnant workers are infringed was emphasised by the Court at pars 45 -47 of its judgment in Paquay. Here the Court said: -
45. However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall, paragraph 24).
46. Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall, paragraphs 25 and 26).
47. It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process. Article 10(3) of Directive 92/85specifically states that Member States shall take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of paragraph 1 of that provision.
At paragraph 49, the Court continued: -
While recognising that the Member States are not bound, under Article 6 of Directive 76/207orArticle 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.”
In summary, the Court held as follows,
“It is abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within 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 treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”
In the present case it has been established that the Complainant was pregnant for the entirety of her employment with the Respondent, including the investigation and disciplinary process. It is also accepted that the Respondent became aware of the Complainant’s pregnancy shortly after the commencement of her employment and throughout the process outlined above.
Having regard to the case-law cited above, I find that the Complainant had discharged the burden of proof in relation to establishing a prima facia case as set out in the Acts. Consequently, the Respondent bears the burden of proving, on “cogent and credible evidence”, that her dismissal was in not in any way related to her pregnancy.
In evidence, one of the joint decision makers stated that the rationale for dismissal arose from two primary considerations; her admission in respect of the fourth allegation and the two direct witness statements that corroborated the event in question. The decision maker also stated that the Complainant’s dismissal primarily arose from the fourth allegation, as this represented by far the most serious complaint.
In relation to the first point it is abundantly clear that the Complainant vociferously denied the fourth allegation on every occasion it was put to her. This allegation was denied in full and on multiple occasions during both the investigation meeting and the disciplinary meeting. While the Complainant did admit to raising her voice on the date in question, it was stated on numerous occasions that she did so in order to be heard by a group in a busy sports hall. This is an entirely different matter from the allegation of raising her voice towards an individual child and does not, in any sense, constitute an admission in relation of the same. In the circumstances it is difficult to understand how the Respondent formed the view that the Complainant admitted to the conduct in question.
Regarding the second consideration, the corroborated witness statements, issues arise here also. The statements were provided a number of weeks after the incident in question despite both parties having knowledge of the proper manner of referral of the same at the relevant time. While I accept that this matter was briefly canvassed during the investigation and disciplinary processes, I find that the answer provided by the witnesses to be unsatisfactory and does not explain the delay in reporting the issue or the motivation for doing so at a much later date. It is also noteworthy that both statements were provided persons that had previously been involved in a personal relationship and it is apparent that there was a degree of collaboration in the drafting of the same.
In evidence the decision maker stated that the severity of the fourth allegation against the Complainant meant that dismissal was the only option available. However, it is apparent that he Respondent formed the view that the matter did not warrant reporting to any child protection agencies. It is also apparent that the Respondent formed the view that the conduct in question did not warrant the suspension of the Complainant. In these circumstances it is not apparent that dismissal, as opposed to a less severe sanction, was the only reasonable outcome in the circumstances.
In the matter of ADJ-00019756 it was noted that the burden of proof in matter involving the dismissal of a pregnant employee is quite high. While it is the Respondent’s position that the dismissal occurred as a result of the Complainant’s misconduct, the evidence as presented does not credibly or cogently demonstrate that this was the sole reason for the dismissal. Having regard of the issues outlines above and the totality of the evidence presented at the hearing, I find that the Respondent has not discharged the burden imposed by the Acts. Consequently, I find in favour of the Complainant and her application succeeds.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Acts.
Having reflected on the totality of the evidence presented in the course of the hearing, I find in favour of the Complainant.
Having regard to redress, Section 82 of the Acts empowers me to award compensation to a maximum of 104 weeks’ remuneration for the effects of an act of discrimination. In the matter of Lee t/a Peking House v Fox EED036, the Labour Court stated that in calculating such an award, regard must be had to the “effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.
A discriminatory dismissal represents a serious breach of the Acts and such transgressions must incur a significant award of compensation. Notwithstanding the same, I am mindful of the fact that the Complainant’s tenure with the Respondent was relatively short and the discrimination did not occur over an extended period.
Having regard to all the circumstances, I order the Respondent to pay to the Complainant compensation the sum €8,167.90, representing six months of her salary.
Workplace Relations Commission Adjudication Officer: Brian Dolan
Pregnancy, Pregnancy Related Dismissal, Burden of Proof, Date of Discrimination, Reasonable Cause.