Complainant

Respondent

Parties

Agija  Korosevska

Banner Pharmacy Limited  T/A Littlepace Pharmacy

Complainant

Respondent

Anonymised Parties

Representatives

Mr Joseph Bradley BL instructed by  Ms Patricia Kiely Solicitor Seán Ormonde Ormonde Solicitors

Mr John Barry  MSS Ireland Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00069309-001

17/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00069309-002

17/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00069309-003

17/02/2025

These matters came before the Workplace Relations Commission on 17/02/2025.  The Complainant alleges contraventions of the above-listed statutes in relation to her employment with the Respondent.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 14/11/2025. 

The Complainant is a former employee of the Respondent.  The Complainant was employed by the Respondent as a front of shop sales assistant at all material times.  The Complainant commenced her employment with the Respondent on 21/04/2023 and her employment was terminated by way of her resignation on 14/10/2024.  The Complainant was paid an hourly rate of €13 for which she worked 38 hours per week. 

The Complainant alleges direct discrimination by reason of her gender and unlawful treatment by discriminating against her in her conditions of employment.  The Complainant claims the most recent date of discrimination as 14/10/2024. 

The Complainant alleges that as a fixed-term employee she has been treated less favourably than a comparable permanent employee.  The Complainant alleges her employer has failed to inform her (a fixed-term employee) of opportunities for (a) permanent employment or (b) of appropriate training opportunities. 

The Respondent refutes all allegations. 

Both parties provided submissions and supporting documentation in advance of hearing. 

CA-00069309-001

Overview of Complainant’s written submission

The Complainant commenced her employment with the Respondent on the 21st of April 2023 as a Sales Assistant.  The Respondent was at all times very satisfied with the Complainant’s, skills, abilities and overall performance in her role.  The Respondent wrote in a letter addressed to the Complainant on 26th of September 2024 stating she had been an asset to the team had a pleasant demeanour, got on well with colleagues, managed suppliers/orders under her responsibility capably and that she conversed effortlessly with customers.

The Complainant became aware she was pregnant on the 14th of September 2024.  She informed her employer, specifically Mr Brendan Bohannan on the 16th of September.

The Complainant will say that although there looked to be significant concern on his face at the news, he wished her well.  The Complainant was not entirely sure what to make of the interaction but was conscious that her employment contract was going to expire at the end of October 2024.

The Complainant queried the upcoming contract expiry with the Respondent on the 19th of September and was given reassurances with respect to her position longer term.  These assurances were not tentative, and she was told by Mr Bohannon that he “would not be able to sleep at night” knowing he let her go at this time.

On the 26th of September she was approached by Mr Bohannon and was told her contract would not be extended because they had “too many staff”.  The Complainant was upset at the prospect of being let go and asked Mr Bohannon if it would be okay if she communicated with him after she had time to digest the news.  Mr Bohannon initially agreed to this, however as the Complainant left for home on the same date, Mr Bohannon asked the Complainant not to text him, and that she should come to him in person.

On (Saturday) 28th September, the Complainant was in work, but Mr Bohannon was not. She sent a text message to Mr Bohannon and in response Mr Bohannon told the Complainant that the end date of her contract could be changed, but it would make more sense from a “practical” point of view for the Complainant to find another job.

On 30th of September, the Complainant informed Mr Bohannon that she intended to stay on until Christmas 2024.  On 1st of October, while in work, the Complainant experienced cramping and discomfort.  She called her GP who ordered her to go to the Rotunda Hospital immediately.  The Complainant was certified sick for 3rd and 4th October 2024.  The doctor stressed to the Complainant that the issue might be stress induced.  Despite the Complainant being certified as unfit for work, she attended as normal.  Mr Bohannon was present in the shop on those days.

On Monday the 14th of October the Complainant was alerted to an indeed job advertisement for her position. The Complainant was profoundly upset and confronted Mr Bohannon about it.

The Complainant asked Mr Bohannon remind her as to the reasons she could not be retained in her employment. Mr Bohannon told the Complainant it was because A (a previous employee of the Respondent) “was coming back”.  The Complainant pushed Mr Bohannon further on the issue, for clarification, but instead of answering the Complainant he asked her “What she was getting at?”  The Complainant told Mr Bohannon she saw the job advert listed online.  The Complainant will give evidence that Mr Bohannon suddenly became lost for words, before telling her that he needed someone with “more experience”.  This was illogical and clearly not the truth of the situation.

The Complainant felt lied to and humiliated.  Since announcing her pregnancy:

• The Complainant was assured she had no reason to panic about her contract end date.

• The Complainant was told she was to be let go because the Respondent had “too many staff.”

• The Complainant was given mixed messages in the form of end dates for her contract of employment .

• The Complainant was informed that it would be more “practical” for her to look for a new job.

• The Complainant’s role was advertised online despite previous assurances that the Respondent had too many staff.

 • The Complainant was informed that she was not being kept on because one of her colleagues were returning to work with the Respondent.

• In the same conversation, just a minute or two later, the Complainant was informed that they needed someone with “more experience” than the Complainant. 

It ultimately transpired that A did not return to work for the Respondent, to the best of the Complainant’s knowledge. The Complainant also instructs that B was a Technician as opposed to Front of House staff like the Complainant, and therefore the two workers had different roles.

The Respondent failed to inform the Complainant in relation in relation to vacancies which became available to ensure that she had the same opportunity to secure a permanent position as other employees or prospective employees. This is in clear breach of section 10 of Protection of Employees (Fixed-Term Work) Act 2003 which provides: “10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees”.

The job of the Complainant was advertised without her knowledge until her friend alerted her to the advertisement on indeed for the position. This not only highlights clear and direct discrimination but also falls foul of Section 10 of the aforementioned

Law relied upon by the Complainant

Section 82 and 85 (c) of the Employment Equality Acts 1998

Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891

Dr Jacqueline Elliott v Flexiteam Ltd. ADJ-00045346

Lee t/a Peking House v Fox EED036,

Ms Z v A Transport Company DEC-E2009-105

Barbara Geraghty v The Office of the Revenue Commissioners ADJ0000031

Trailer Care Holdings Ltd v Deborah Healy EDA128

Section 6(1) of the Employment Equality Act 1998

Trailer Care Holdings Ltd v Deborah Healy EDA128

Rotunda Hospital v Gleeson [DDE003/2000]

Cork City Council v McCarthy EDA21/2008

Wong v Igen Limited [2005] IRLR 258

McBrierty v NUI Galway EDA091

Melgar v Ayuntamiento de Los Barrios (C438/99)

McGloin v Legal Aid Board DEC-E2009- 042

Summary of direct evidence of Complainant on oath

The Complainant outlines that she commenced employment with the Respondent in 2023 after two meetings with the directors during which they described what she would be doing and the roles of the girls working there.  The Complainant submits she took them up on their offer.  The Complainant outlines she had been working in an off license and the wife of one of the directors who was a customer there was impressed by her customer service.  The Complainant confirms the fixed term nature of the contract was explained to her.  The Complainant submits the job she left was permanent job but the hours in the pharmacy suited her and the days were perfect for her and she submits it was time for a change for her. 

The Complainant outlines that she served customers, kept the stock tidy and she handed out prescriptions and there would have been between three and six people on the shop floor including her.  The Complainant submits the manager left and wasn’t replaced and that she got on very well with the lads and all the customers.  The Complainant submits she was never subject to a disciplinary procedure during her time there.

The Complainant is directed by her representative to a letter dated 24 April 2024 detailing that the Respondent was in a position to offer her new 9-month FTC as her current 12-month FTC terminated on that date (24 April 2024) and the Complainant submits there was no discussion prior to giving her the letter. 

The Complainant submits a few of the other team members joined after her and one was fairly new and that apart from C she was the most senior member of staff.  The Complainant submits the illness referenced in the letter relates to respiratory problems she had that they knew about as she was getting her prescriptions from them.

The Complainant submits the Respondent was made aware of her pregnancy in September 2024 and she told them because orders / deliveries can be quite heavy and she didn’t want to be lifting them and that’s why she told them.  The Complainant submits Respondent Brendan Bohannon (hereafter BB) seemed surprised but that he wished her well.

The Complainant submits a few days later she asked if she could have a few words about her future but he said he would have to discuss with John (John Tunney hereafter JT).  The Complainant submits there had been no indication her contract wouldn’t be extended and that a week after she told him she was pregnant BB came to her with a referral letter setting out that they wouldn’t be able to extend her employment with the company when her contract concludes on Sunday 27 October. 

The Complainant submits that A had been in the shop and she had told them all that she wouldn’t be coming back from maternity leave but the letter said that she (A) would be coming back.  The Complainant submits she was upset at the letter and she asked BB if she could text him about it but he said he’d prefer to chat.  The Complainant submits the letter she got extending her contract had given an end date of the last day of January 2025.  The Complainant submits she wanted him (BB) to clarify when was she leaving and the referral letter was causing her confusion so she texted him and he texted back the narrative of which is referenced and in particular the Complainant is asked what was her understanding of the phrase “from a practical point of view it probably makes a lot more sense to look for a job now”.

The Complainant submits her understanding of that was that she should apply now before she started showing.  The Complainant submits she told him (BB) that she’d like to stay until the end of her contract and that she’d prefer to do that.

The Complainant submits that after she got that letter she experienced some cramping and that BB told her to phone the GP and the GP told her to go to the Rotunda which she did and she was told there it was stress and she was signed off for two days. 

The Complainant submits that when she woke up on Monday her friend sent her a job advert from Indeed.  The Complainant submits it was completely identical to the hours that she worked and that her salary was 13 euro and it hadn’t changed while she had been there.  The Complainant submits she was devastated and she was completely upset and she asked to talk to BB.  The Complainant submits he was taken by surprise.  The Complainant submits she told him she respected his decision and she told him she was going to leave. 

The Complainant submits that BB told her that D and E would be receiving the same letter that she had.  The Complainant submits they weren’t overstaffed and they had taken somebody on with no experience while she was on holidays.  The Complainant submits she felt deceived and she felt let down and that it was all due to the fact she was pregnant.  The Complainant submits there was no indication prior to her announcing her pregnancy that she wouldn’t be renewed.  The Complainant submits there were no raised voices and she just wanted to leave and go home.

The Complainant submits she is not sure what happened when she left and there was no team leader in place when she left. 

CA-00069309-002/3

The Complainant submits she was under the impression she would be there permanently and that the advert was never brought to her attention.  The Complainant submits a permanent position was never suggested to her.  The Complainant submits she was never made aware of training.  The Complainant submits as far as she was concerned she was doing everything right. 

Summary of cross-examination of Complainant

It is put to the Complainant that prior to the letter she received extending her contract to the end of January that there had in fact been a conversation which the Complainant accepts.  The Complainant is asked if she was aware when the Team Leader (TL) had left that the company was looking for a replacement to which she replies no.  The Complainant is asked if she was aware that the Respondent was given the name of somebody for the role from a colleague to which the Complainant responds she wasn’t aware of any of that and when asked if she was aware that an advert that had gone out on 2 September was the same as the one that went out in October she said she wasn’t aware of that. 

The Complainant is asked if she had two years’ experience as set out in the advert to which she replies that she had 19 months experience. 

The Complainant is referred to the conversation that took place on 19 September when the Complainant informed BB that she was pregnant and the Complainant replies she asked BB what his plans were for her future employment.  It is put to the Complainant that BB will give evidence that she had indicated to him that if she were not made permanent she would look for another job before she started to show to which she replies no. 

It is put to the Complainant that at the time of the September conversation BB thought A would be coming back and she is asked if she accepts that all things being equal if and when A came back and a team leader was recruited they would then be fully staffed to which she replies “I suppose so” followed by why did BB hire someone while she was on holidays. 

The Complainant is asked if she accepts that the salary band set out in the advertisement would imply that this could be a senior person to which she responds they employed someone with no experience while she was holidays.  The Complainant is asked if she asked BB why they had done so and she responds that it is not her place in the workplace to ask that.  The Complainant is asked why she didn’t question him as why he didn’t let her go before the Complainant.  The Complainant submits BB said they were on a new contract and it wouldn’t expire for year and they joined while she was on holidays.

It is put to the Complainant that person was recruited to cover long term sick leave. 

The Complainant is directed to the referral letter and is asked if she accepts that if she were looking for another job that this would help her which she accepts. 

The Complainant is referred to the text she received from BB which sets out that she could change the termination date and she accepts this but says she didn’t want to go.

The Respondent representative makes reference to the phrase “from a practical point of view” and to the conflict that exists – go before you show on the one hand and I want to go before I show on the other hand. 

The Complainant is asked if she accepts that if she wanted to stay until the end of January that she could and it was not an issue which she does accept.  The Complainant is asked if she accepts that BB was friendly and supportive towards her which she does accept and she submits that she loved working with the lads and she was more than happy to go to work. 

The Complainant is asked about the advert and she said she doesn’t know about any previous advert.  It is put to the Complainant that she was upset and annoyed because she thought it was her job in the advert.  The Complainant is asked why did she think it was her job to which she replies she was the longest there.  It is put to the Complainant that the details are quite specific with regard to the salary band and the experience required to which she responds she was the most experienced and they never put her forward for it. 

The Complainant is asked if she applied or if she had told them she was interested to which she replies no and that it wasn’t brought to her. 

It is put to the Complainant that BB explained to her that it was to replace the TL who had left and that she knew it wasn’t her job.  It is put to the Complainant that she saw an advertisement, thought it was for her job and she had established that it wasn’t and why didn’t she say to BB that she would be interested to which she replies she was too upset and they never said they wanted to put her forward and they made a bold statement in their letter extending her contract that they looked forward to her progressing in her role and taking on a more leader role. 

The Complainant is asked if she genuinely believed she was suitable why didn’t she apply instead of walking out to which she replies yes she did walk out but she did but she did it respectfully. 

The Complainant is asked if she accepts it wasn’t her job in the advert to which she replies “if you say so.” 

It is put to the Complainant that she was told on the day that it wasn’t her job and she chose not to say that she would be interested to which she replies she had been told there were too many staff.  It is put to the Complainant that she knew that the TL hadn’t been replaced and it is put to her that that A didn’t tell the Respondent until December that she wouldn’t be coming back and if the Complainant knew, as she had put in evidence that A wasn’t returning, why didn’t she tell BB that they wouldn’t be overstaffed as A had told her that she wasn’t coming back. 

It is put to the Complainant it is difficult to understand why she didn’t tell BB that A was not coming back to which she replies that “it was always a bit up in the air.” 

The Complainant is asked if she accepts that BB didn’t know and as far as he was concerned A would be coming back to which she replies she wasn’t party to the conversation. 

CA-00069309-002

The Complainant is asked how did she get treated less favourably than permanent employees and two permanent comparators are identified C and B.  The Complainant submits that B is doing a course and she was a shop assistant and that she (the Complainant) never got that opportunity.  There is no difference in treatment identified with second comparator.  The Complainant is asked if she asked BB about training to which she responds there was a discussion with BB before her first year long FTC had ended that she would do OTC training. 

CA-00069309-003

It is put to the Complainant that she was made aware of a position on 14 October. 

Closing submission Complainant

The Complainant was hired on an FTC as a sales assistant and there is some dispute whether covering maternity leave or 12 month or 9-month contract.  It is submitted there is no evidence to suggest she was hired for maternity leave cover and she was not covering somebody on maternity  leave as she wouldn’t be qualified to cover those on maternity leave at that time. 

The Complainant got on very well there and her second FTC was due to expire end of January 2025.  The Complainant told the Respondent she was in the early stages of pregnancy on the 12 September and in her evidence she says she was advised to look for another job before she starts showing and this is the matter in dispute.

It is submitted in a further conversation she was handed a letter saying they were not in a position to extend her contract beyond the end of October and the Complainant was very distressed about this despite reassurances.  It is submitted that the only thing that had changed between the renewal of her FTC and the end of October letter was the disclosure of her pregnancy. 

It is submitted the Tribunal can draw an inference from the job advert 25 October which was 2 days before the expiry of her contract.  It is submitted that having regard to the job advert itself ultimately the person hired out of it had 10 years’ experience but there was no reference to team leader or front of house role in the advert and it is submitted that was not the intended job. 

It is submitted the Tribunal can draw inferences from the disclosure of pregnancy and the unravelling of employment.  The factual matrix of all complaints is very similar there was direct discrimination in the non-renewal of her contract because it wouldn’t have made economic sense and it is a clear indication the Complainant was not afforded the same opportunities.

CA-00069309-001

Overview of Respondent’s written submission

The Complainant commenced working with the Respondent as a Front of Shop sales assistant on the 24th April 2023.

The Complainant joined the Respondent on a Fixed Term Contract which was for a period of 12 months and was due to expire on the 23rd April 2024.

The reason the employment was on the basis of a fixed term contract arose as a result of the maternity leave of a permanent employee, (Employee A), who worked in the dispensary, which meant that a front of house sales assistant (Employee B) was moved in to the pharmacy to cover employee A’s role and this created the need for the Complainant to cover employee B’s role in front of house. 

Subsequently, another employee, (Employee C) also went on Maternity leave, which meant that another Shop assistant (Employee D) was moved into the dispensary to provide cover for this role.

When it came to the expiry date of the initial Fixed term contract, as the Respondent now had two members of staff on maternity leave the Complainant was offered an extension of her contract to the 31st January 2025.

During the course of these discussions it was explained to the Complainant that when employee C returned, employee D would be returning to her role as a Shop assistant, which was the role the Complainant was now covering.

Subsequent to this, the Respondent was advised by employee A of their intention to return from her maternity leave at the end of June 2024.  When employee A returned to her duties this meant that employee D returned to working as a shop assistant.  As employee C was still on maternity leave, employee B remained in the dispensary and the clamant continued to provide cover.

In July 2024 the Respondent was advised by the Front of House Team Leader/ Manager, who had in excess of 5 years’ experience, that she was leaving. As this required a person who had experience, the position was advertised publicly by the Respondent as none of the existing Front of House staff would have had sufficient experience to be considered for this role. 

At this time, all the staff in the shop, including the claimant, were aware that this role had become vacant and that the Respondent would be looking to hire a replacement Team leader.  Arising from this a member of staff informed a friend of hers of the vacancy and this person was interviewed for this role early mid-August.  She had in excess of 4 years relative pharmacy experience in another Pharmacy, and she was offered the position as Team leader/Manager at the end of August 2024.  

Unfortunately, before she took up the appointment it fell through which meant the Respondent needed to readvertise the role.

An advertisement was placed in “Indeed” on 2nd September, seeking a candidate with minimum 2 years’ experience, with the view to taking on a Team Leadership role.  It should be noted that this advertisement was placed prior to the Complainant announcing her pregnancy and was the same as the advertisement that was subsequently placed on Indeed on 11th October, which the Complainant maintained was her job. 

On the 12th September 2024, the Complainant advised both of the owners that she was in the early stages of pregnancy. On the 19th September, the Complainant approached Mr Bohannon, one of the owners, enquiring as to whether the Respondent would be making her permanent at the end of her extended contract.

The Complainant explained to Mr Bohannon that she was asking, as if she was not going to be made permanent, she was considering leaving before the expiry of her contract so that she could look for another role before she, to quote her own words, “started showing”.

Mr Bohannon made a contemporaneous note of this meeting.  Mr. Bohannon met with the Complainant on the 26th September, and explained that employee C, who was a technician, had confirmed her intention to return to work at the end of her extended maternity leave, which meant she would be back on the 7th January 2025.  

Law relied upon by the Respondent

Section 6(2) of the Employment Equality Acts 1998

Section 85A(1) of the Employment Equality Acts 1998

Mitchell v. Southern Health Board [2001] ELR 201

Summary of direct evidence of Respondent witness Brendan Bohannon (hereafter BB) on oath

BB outlines that he is a pharmacist and one of the two directors of the Respondent company which was set up in January 2003.  BB submits that during that time they would have had between 23 to 25 staff on maternity leave and there had never been any issues.  BB submits that around 80% return from maternity leave sometimes on shorter hours and they are well used to maternity leave.  BB submits that when the Complainant was hired it was to provide additional cover for a maternity leave as by bringing the Complainant in they could move X to the dispensary and that he is very confident the Complainant was aware it was a FTC. 

BB submits it was explained that with A going on maternity leave they would need additional cover and they asked the Complainant would she be interested in extending and a letter issued after the conversation which he asked her to read through it and come back to him. 

BB’s attention is drawn to the paragraph of the letter of 24 April which sets out the piece about the Complainant progressing further in her role and evolving into a more leader role front of shop and BB submits that he and the Complainant got on brilliantly but there was a ceiling.  BB submits he was hoping she would advance in the role but it just didn’t happen and that some people are cut for team leader roles and others aren’t. 

BB outlines that he said to all staff last August that they would be looking for a replacement for TL role and that one of the staff identified a friend of a friend that might be suitable and that progressed well until the reference checking but just didn’t work out in the end.  

BB submits the Complainant was aware they were looking for someone – everybody knew.   BB submits they had hoped the Complainant could evolve but there were limitations there.   BB submits the advert on 2 September bore no fruit but that in October when they advertised again they hired someone who has 10 years’ experience.  

BB submits they did bring someone in while the Complainant was away in August and that was E and she was best friends with A and she wasn’t happy where she was and that they usually take someone on coming up to Christmas and she jumped at it. 

BB submits the Complainant told him she was pregnant on 12 September and he was happy for and gave her a hug and pregnancy is all part of the pharmacy given then age profile and the number of employees.  BB submits he was surprised she was telling him so early as she was only 4/5 weeks along and usually the employer doesn’t hear until 11/12 week. 

BB submits the Complainant came to him and asked can they have a chat and what will happen when her contract ends at the end of January.  BB submits the Complainant said if she’s not made permanent by the end of January she will look for another job.  BB submits he’s well used to pregnancy and to staff on maternity leave and that he needed her to stay and that there would be no benefit to him if she left the pharmacy.  BB submits the referral letter was to show that she left the pharmacy on good terms. 

BB is directed to a note he made on 19/09/2024 after the meeting and is asked why he made the note to which he replies that alarm bells went off and he was uncomfortable that someone would use the ‘before I start showing’.  BB submits he would have mentioned to her that he had a friend opening a pharmacy.  BB submits it was he who called the meeting the following week on 26/09/2024 and it was the Complainant who instigated the meeting on 19/09/2024.  BB submits he couldn’t foresee the need to keep the Complainant on when A came back and she was due back on 7 January and at that stage he had no indication from her that she wasn’t coming back. 

BB submits the Complainant never expressed any interest in the role and that it was a big inconvenience to them when she walked out when she did.  BB submits that the date of 27 October set out in the referral letter was picked to help her if she wanted to look for other jobs but that it was a notional date.  BB submits the Complainant phoned him on 28 September and he reassured her the letter was purely if she wanted to leave and he said he was talking to her rather than texting as she said she was anxious about the letter. 

BB submits the phrase ‘from a practical point of view’ that he used in his text to her was in the context of the Complainant saying ‘before I start showing’. 

BB submits she said she was happy to stay to end of contract and he was delighted with that.  BB submits they re-ran the advertisement on 10 October and they never advertise specifically for team leader or front of shop manager as it gives them more of a choice with regard to potential applicants and that shop assistants would never get €18 per hour. 

BB submits that ‘no experience needed’ is the default setting and the October advert was identical to the one they ran previously and that he was gobsmacked when he saw the advert and the no experience needed piece.  BB submits that JT phoned Indeed and they removed that with immediate effect.  BB submits he reiterated to the Complainant that they were looking for a team leader and that he made it clear to her that it wasn’t her job. 

BB submits she (the Complainant) had nowhere near the experience for team leader there had been till issues and she had been removed from the till and she wouldn’t have any experience of rotas or recording sick leave or anything like that.  BB submits she had 16 months experience at that time and the person they took on had 10 years.  BB submits everyone knew they were looking for a replacement for the TL.  BB submits they paid the Complainant for two weeks.  BB submits there was no correlation between the role she was doing and the role they were seeking to fill and that it was common knowledge among all the staff the advert was to fill the TL role.

BB submits it was in early December that he knew for definite that A was not coming back.  BB submits that when the Complainant left they were one down and they asked a customer who had retired from the HSE if she could help them out and she agreed and said she could help out up to Christmas. 

CA-00069309-002 Conditions of employment

BB submits that her conditions of employment were more favourable because from the outset was introduced to the quarterly bonus and she had never said during her employment that she felt she was treated less favourably.

CA-00069309-003 Failed to inform of opportunities / training opportunities

BB submits that a staff member is undertaking the dispensary course which she started in Jan 2025 and she has been with them for three and a half years and he submits that staff usually come to them expressing an interest in training and they require longevity and commitment because he IPU courses cost between 7 and 8 thousand euro.  BB submits it would that the course would have come up in conversation with the Complainant early 2024.  BB submits the Complainant would have been aware they were looking to fill the TL role.   

Summary of cross-examination of Respondent witness BB

BB is asked what % of maternity leave would have been permanent staff v FTC to which he replies 85% would have been permanent over the 20 years.   The witness is asked if he was shocked when he heard of the pregnancy to which he replies why would anyone think he’d be shocked.  A was pregnant also.   The witness is asked about the situation when the Complainant joined the company and he submits it was a time of flux and there had to be some reorganisation but that is part and parcel of retail.  BB confirms upon inquiry that X was a technician and Y was moved into dispensary to cover her and it is put to the witness that the Complainant wasn’t actually covering maternity leave and references the two people on maternity leave by name.

It is put to the witness that the letter of 24 April was very complimentary no issues with performance to which the witness responds there were some issues with attendance set out there also and there had been issues with the till.  The witness is asked if he had brought up the limitations he had mentioned earlier with the Complainant to which he responds he had chatted to her about the till and she’d been taken off it.

Adjudicator note

For the avoidance of any possible doubt “issues with the till” is not a euphemism for anything other than the fact the Complainant struggled with numbers as clarified by the Complainant. 

It is put to the witness that she wasn’t covering maternity leave and that she wasn’t told that.  BB submits the Complainant was brilliant with customers and they were happy to have her there but there was a ceiling and she had received training from all of them and they had tried their best.

It is put to the witness that the advert says 2 years’ experience and that he will be aware that the Complainant had 1 year and 9 months to which BB replies that the advert went out in September and that when the Complainant left them she had been there for 17 months. 

BB is asked was it envisaged she would fill the role in the advert from 2 September to which BB replies no – not at that time but that maybe in the future and we needed someone immediately that could fill TL’s shoes.  It is put to BB that there is a fundamental disagreement on the conversations that took place when she told him she was pregnant and he is referred to the text from the Complainant which is confirmed followed on from the conversation. 

It is put to the witness that the advert was for a team leader role is disputed to which BB replies sorry there is no confusion about the role it was to replace the TL and everyone knew that. 

BB is asked did he try to persuade the Complainant to come back to which he replies no he didn’t because she was so angry.

BB is asked why did he encourage the Complainant to leave to which he responds “sorry I can’t let you say that - I did not encourage her to leave.”

It is put to BB that the Complainant’s case is that he used the language “showing” and is asked if he agrees the text following the meeting was encouraging her to leave to which BB replies that simply does not make sense and why would be want her to leave three months before the expiry of her contract.

BB is asked about the handwritten notes exhibited in the appendices and is asked to confirm his earlier evidence that they were contemporaneous which he confirms. 

BB submits her contract was naturally going to end in January and they needed her to stay.  The witness is asked about B and C and if they were originally FTC to which he replies they were taken on permanent and A also.  BB is asked how many FTCs have moved across to permanency to which he replies about 50. 

BB confirms that there is a staff member on a dispensary course and she’s been there just shy of 4 years before that was arranged.  It is put to the witness that he had said there was no set training policy but do you have to be there a certain amount of time before training is considered to which BB responds it depends on when you join and the IPU courses always run from a January and the course runs for 2.5 years and in that situation you wouldn’t sent an FTC on that course and couldn’t have continued to pay for a course after a contract had ended for an FTC. 

Closing submission of Respondent

It is submitted that we look at the facts and there is no dispute there was an FTC contract although much has been made to confuse the issue due to not covering maternity leave.  It is submitted the contract was for 12 months and the Complainant was made aware there were people on maternity leave.  It is submitted nothing hangs on the purpose of the FTC and a workforce of 13 is not a large multi-national organization. 

It is submitted the FTC had an objective good reason for it and had the Complainant not walked out when she did there is every possibility she would have been asked to stay.  It is submitted it was very respectful and there was never any rowing and the Complainant was an excellent front of house person and she was fabulous with the customers.  It is submitted that why would anyone want to lose someone like that coming up to Christmas and it doesn’t make sense.

It is submitted there is a clear conflict of evidence regarding the conversation that took place. It is submitted the Respondent would have been very familiar with the intricacies of maternity leave and why would he tell a valuable asset that maybe you should start looking for a job now before you start showing.  It is submitted it makes sense that the Complainant would try to get a job so she could get her maternity leave etc. 

It is submitted the Respondent made contemporaneous notes that haven’t been challenged and they had a good relationship and BB liked her and offered her the letter to make it more credible but it is indicative of the good relationship they had when he clarified in the text after that she could stay until the end of the contract and this does not indicate someone who is being pushed out. 

It is submitted there is no evidence of any animosity between the parties.  It is submitted that everyone knew that the TL had to be replaced.  It is submitted that it was a broad advert and that people with a broad range of experiences might apply.  It is submitted team leader may not be mentioned but the salary range is which is significant.  It is submitted there was a big issue made about the date of the advert but it was not the Complainant’s job as the two jobs were completely different.   It is submitted there was an aspiration the Complainant would progress but she herself  never said of the team leader job ‘I could do that.’

It is submitted in relation to the suggestion this was a knee jerk reaction she was never told her contract would be terminated and that which was set out in the letter was a notional date.  It is submitted that nothing has been shown that the Complainant was treated less favourably.  It is submitted there was no reason to encourage the Complainant to leave as she would have been leaving at the end of January.  It is submitted there is no formal training bar on the job but training courses are in existence in IPU over 2.5 years and if staff are there that long they would or should be on a CID.  It is submitted the named comparator was permanent but she didn’t get on a course until she’d been there 3 or 4 years.

It is submitted there was no formal structured training programme and the Complainant was treated exactly the same as the permanent staff.  It is submitted it has been discovered she is actually on better terms and conditions as in a better remuneration package than permanent staff and nothing has been identified that she has been treated less favourably than permanent staff.  It is submitted there is no evidence of any stressed relationships and it is very unfortunate the Complainant just said she is going.  It is submitted her decision to go doesn’t show any evidence of planning and it is submitted that it is clear she didn’t want to listen to the explanation provided by the Respondent. 

It is submitted that everything that happened was initiated by the Complainant and there are so many inconsistencies there with far less so on the part of the Respondent. 

CA-00069309-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded.  I have two versions of events before me that are entirely at odds in most respects having regard to what was said during a conversation that took place on 19/09/2024 between the Complainant and the Respondent.   The fact that the conversation did take place is the only fact that is not in dispute.  The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.  

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.

CA-00069309-001

The Complainant’s complaint pursuant to section 77 of the Employment Equality Act, 1998 is that she was discriminated against by the Respondent on the grounds of her gender and that the Respondent has treated her unlawfully by discriminating against her in conditions of employment.

The Relevant Law

Section 6(1) of the Act provides, in relevant part, as follows: -

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a)a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Section 6(2A) of the 1998 Act also provides protection for pregnant workers against less favourable treatment in the workplace. It provides:

“2(A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

Section 85A of the Acts provides for the allocation of the probative burden between a complainant and a respondent in cases coming within its ambit.  In the matter of Mitchell v. Southern HealthBoard [2001] ELR 201the 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.  [emphasis added]

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.”

However, it is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer.   The fact of pregnancy is the “primary fact.” 

In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty -AND- Helen Ahern [EDA 195] the Labour Court set out at considerable length its understanding of the legal protections for pregnant women as follows: 

“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 the Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.”

In summary the Labour Court in Teresa Cross 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 to 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… [emphasis added]. 

Having regard to the case law cited above, I find the Complainant has discharged the burden of proof in regard to setting out a prima facie case as set out in the Acts.  Accordingly, the Respondent bears the burden of proving, on “cogent and credible evidence”, that the non-renewal of the Complainant’s FTC was not in any way related to her pregnancy.

The Relevant Facts

It is common case the Complainant commenced her employment on 24/04/2023 on a FTC for 12 months.  At the end of the 12 months it is not in dispute the Complainant was offered another FTC for 9 months that would bring her up to the last day of January 2025.  The details of same are set out in a letter to the Complainant of 24/04/2024. 

I do not accept the Complainant’s evidence that there was no discussion between the parties before this offer of a new 9-month contract was made.  I am satisfied a conversation did place between the parties and the details were set out in the aforesaid letter provided to the Complainant after said conversation.    

I note the letter sets out the reason the Complainant was offered a FTC as opposed to a permanent contract which related to two permanent staff members currently on maternity leave and set out as follows “while we fully expect both will not return doing full-time hours, we must plan for this possibility.”

It is noted that, when renewing a fixed-term contract, employers are obliged to set out the objective reason for offering a further fixed-term contract as opposed to a contract of indefinite duration which has been complied with in accordance with section 2(2) of the governing legislation namely the Protection of Employees (Fixed-Term Work) Act, 2003. 

The aforesaid letter sets out the Respondent’s gratitude for the Complainant’s dedication and her loyalty and the flexibility shown by her and sets out the Respondent’s aspiration that the Complainant progress further in her role in the coming months.  The Respondent sets out that there is an anticipation that the Complainant might “evolve into a more ‘leader’ role front-of-shop…”leading and directing the newer staff members.”

The Conversation on 19/09/2024

I note the Complainant submits in her written submissions she advised the Respondent of her pregnancy on 16/09/2024, in her direct evidence submits she notified them in September and in closing submissions the 12/09/2024 is submitted. 

I note the Respondent submits notification of pregnancy was provided on 12/09/2024 in the written submissions and in direct evidence. 

Nothing turns on the inconsistencies here and I note that the following week, regardless of which date I prefer to accept as the date of notification, a conversation took place between the Complainant and the Respondent BB on 19/09/2024, such conversation having been initiated by the Complainant because she wanted to “have a few words about her future.” 

I note BB submits that at the meeting the Complainant stated that if she is not made permanent by the end of January (the expiry of her FTC) she will look for another job “before she starts showing”. 

I note in the closing submission the Complainant representative recalls the evidence of the Complainant as being that she was advised to look for another job “before she starts showing.”    

I note both parties gave evidence on oath in support of their version of events and contested the opposing account.  There is a considerable variance between the Complainant’s and the Respondent’s respective account of the conversation that took place on that day.  

I am not in a position to definitively resolve the directly conflicting evidence of the parties in relation to the precise nature of the discussions that took place between the Complainant and the Respondent on 19/09/2024 in circumstances where there no other witnesses to the discussions apart from the two aforementioned parties. 

Both parties seem to differ markedly in their interpretation and / or their recollection.  Accordingly, I am obliged to consider all relevant factors and the surrounding circumstances. 

I find the Respondent’s account to be more persuasive and credible for the following reasons. 

It was not contested that the Respondent has considerable experience in dealing with pregnant employees bearing in mind the profile of the staff in the place of business and it would be a prudent and knowledgeable employer who would take contemporaneous notes of discussions with a pregnant employee which provided a corroborative and cogent backdrop in this instance albeit I accept that while corroboration adds weight, it is not necessarily determinative. 

Accordingly, I have considered the surrounding circumstances.      

I am satisfied on balance that from a business perspective it would be completely counter-intuitive for an employer to encourage an employee to leave especially with Christmas coming up which would be one of the busiest times in this line of business.  I do not find it plausible that an employer who describes an employee as “brilliant with customers” would encourage the employee to leave having described her thus.   

Conversely, I find it entirely reasonable and plausible that the Complainant upon hearing there was no permanency available to her when her FTC expired at end of January 2025 would pivot her focus to looking for a permanent job as soon as possible so as to ensure or to guarantee her maternity benefits.    

I am further satisfied that the text sent by the Respondent to the Complainant on 28/09/2024 is indicative of the fact the desired outcome was that the Complainant would stay working with them until the end of her contract on the last day of January when he provided clarification to the Complainant in respect of the referral letter he had drafted for her as she embarked on a job search in which a notional date of 27/10/2024 was set out: “That letter and the date on it was done up more of a reference you could give a new employer.  We can change that date to whatever suits you or you can stay working with us until your contract ends if you like.”

I note the Complainant submits in direct evidence that she told BB she would like to stay until the end of her contract and that she would prefer to do that. 

I note the matter appeared to end there and there seemed to be no further discussions until Monday 14/10/2024 when the Complainant instigated a conversation with the Respondent because a friend had sent her a job advert from Indeed for what she (the Complainant) believed to be her job. 

The Job Advert and the Resignation

I note the Complainant believed the job advert on Indeed to be her job and I fully accept she was “devastated and completely upset” as she submits at hearing.  I have taken into account everything that was said about the job advert at hearing.  The Complainant representative in closing submissions invited the Tribunal to draw inferences from the job advert dated 25/10/2024 which he submitted was two days before the expiry of the Complainant’s contract.   

However, this simply does not make sense as the Complainant had already indicated at the end of September that she had decided to stay on until the end of her contract and it had been explained to her that the October end date was a notional date to facilitate her job search which she subsequently did not embark on as she decided to stay on. 

Furthermore, even if it is accepted that the expiry of the Complainant’s contact was indeed to be 27/10/2024 it is highly implausible that the Respondent would advertise for a replacement two days in advance as there would be no likelihood of finding a replacement at such short notice.    

Much was made by the Complainant representative of the vacancy notice itself in seeking to persuade it was the Complainant’s job albeit the Respondent submits it was to replace the Team Leader.  

However, on balance and having carefully considered all the facts, I accept the account of the Respondent in this regard in that it was a generic vacancy notice in an attempt to attract as wide a pool of applicants as possible without specifically referencing that it was for a Team Leader role. 

Furthermore, the crucial indication that it was not the Complainant’s role was the salary range as set out.  I accept an error had been made in the posting of the vacancy notice that stated “no experience needed” whereas the vacancy notice itself states under the heading Experience – Irish Pharmacy 2 years (required).   

Notwithstanding, the Complainant believed it to be her job that was being advertised and she believed she was being replaced.  I note during a conversation on 14/10/2024 when the Complainant had become aware of the vacancy notice reassurances were provided to her that the vacancy notice was for someone to fill the Team Leader role but the Complainant decided she no longer wanted to work there and she left of her own volition. 

Non-renewal of FTC

I note the central plank of the Complainant’s case is that the non-renewal of her FTC is directly related to her pregnancy which constitutes unlawful discrimination on grounds of her pregnancy.  However, this line of argument is not supported by the facts. 

I note it is a fact not in dispute the Complainant received a new FTC in April 2024 of 9 months duration.  I note that a renewal of an FTC or indeed the provision of a CID would not have arisen until the expiry of that contract at end of January 2025 and the failure to renew, if any, would have arisen at that time. 

It is a fact not in dispute that the Complainant left her employment before the expiry of her FTC having previously stated on 01 October that she would remain on until the end of the year. 

Much was made by the Complainant representative of the view that the Complainant was not in fact contracted on a FTC basis to cover an individual on maternity leave and I address this for completeness.  I note the Respondent undertook reorganisation of staff in order to provide role cover for two permanent employees on maternity leave both of whom would return to their previous roles on return from maternity leave. 

I note the Complainant was providing front of house cover for an employee who had been temporarily moved to the dispensary to provide cover there.  I am satisfied the purpose of the Complainant’s FTC was to provide maternity cover arising out of a reorganisation of staff and any such reorganisation is at the sole discretion of an employer.  I am satisfied that in terms of overall headcount when the remaining employee on maternity leave returned it would lead to an overstaffing situation. 

I note the Complainant’s evidence adduced at hearing that the aforesaid employee had been in the shop and had told them she would not be returning.  I note when it was put to the Complainant that it was difficult to understand why she did not advise BB of this during the many conversations that took place between them which featured discussions on colleagues on maternity leave and estimated return to work dates which directly impacted on her she responded “it was always a bit up in the air.” 

I am satisfied the Respondent was not made aware until early December that the employee was not returning from maternity leave.

I am of the view the unfortunate irony of this situation is that had the Complainant remained in her employment until the end of her FTC as she had indicated she would it is likely the non-return from maternity leave of her colleague may well have positioned her to have been offered a permanent contract in terms of satisfying the overall headcount requirement at that point in time as the non-returner from maternity leave meant there would not have been a staff surplus in terms of overall headcount.   

I am satisfied based on the evidence adduced that the Complainant was aware at all material times that she was covering maternity leave absences and I note this was expressly set out by the Respondent in correspondence of 24/04/2024 when she was offered a new 9-month FTC where the rationale for offering a 9 month FTC as opposed to a permanent contract was explained to her.  I am satisfied the Complainant left her employment while she was working through this contract and it was not due for renewal at any time since she had informed the Respondent she was pregnant.  It is a fact the FTC was not yet due for renewal. 

It is difficult to escape the conclusion that the Complainant made an impulsive decision to leave her employment when her friend alerted her to the vacancy notice and when she did not accept the Respondent’s explanation although it was patently obvious the salary bands in the advertisement did not relate to her role. 

In circumstances where there is a significant conflict in the key evidence I have very carefully considered all relevant factors and the surrounding circumstances and having carefully considered all the facts as set out above I find that the allegations are not borne out by the facts. 

Having carefully considered all the evidence adduced and for the reasons set out above I am satisfied the Respondent has rebutted the presumption. 

As the Respondent has rebutted the presumption of discrimination; I determine that the Complainant was not discriminated against by the Respondent arising from being pregnant.    

CA-00069309-002

The Complainant’s complaint pursuant to section 14 of the Protection of Employees (Fixed-Term Work Act, 2003 is that she has been treated less favourably in respect of her conditions of employment than a comparable permanent employee. 

The Relevant Law

The Protection of Employees (Fixed-Term Work) Act 2003 (“the Act”) governs fixed-term and specified purpose contracts of employment (together referred to as “fixed-term contracts”).  Section 6 of the Act sets out that fixed-term employees shall not be treated in a less favourable manner in respect of their conditions of employment than comparable permanent employees unless the reasons can be objectively justified. [emphasis added] 

The Relevant Facts

I note the Complainant did little to advance or engage with this complaint.  The concept of a comparator was explained to the Complainant.    It was noted the comparator must be a permanent co-worker for the same employer and must do the same or similar work to the fixed-term employee under similar conditions and generally the comparator and the fixed-term employee are interchangeable.  

I note the Complainant did identify two comparators further to the explanation provided as to what constitutes a comparator and she submits one of them received training that she did not receive. 

The Complainant did not advance any evidence in regard to conditions of employment in which she was treated less favourably as alleged.    

On the basis of the evidence as adduced I find this complaint to be not well-founded in circumstances where the Complainant enjoyed terms more favourable than her colleagues as she was in receipt of a quarterly bonus the details of which I note were referenced in the letter of 24 April 2024 setting out the offer of a new 9-month contract and in circumstances where no evidence was presented to me that indicated less favourable treatment in respect of her conditions of employment than a comparable permanent employee. 

Accordingly, the Complainant has not established a breach and, therefore, I find this complaint to be not well-founded.     

The training piece is specifically provided for and addressed in the following complaint. 

CA-00069309-003

The Complainant’s complaint pursuant to section 14 of the Protection of Employees (Fixed-Term Work Act, 2003 is that her employer failed to inform her of opportunities for (a) permanent employment or (b) of appropriate training opportunities. 

The Relevant Law

Section 10 of the Act provides as follows:

10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment. [emphasis added]

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.

I note the Respondent submits it was “common knowledge” among all the staff including the Complainant that the Respondent was actively seeking to replace the TL role.  However, I note the Complainant in her evidence submitted she was not aware of the previous advertisements. 

I note the Complainant submits she was the longest there and they never put her forward for the role.  Conversely, I note the Complainant did not put herself forward or express any interest in the TL role. 

It is well established employers have a duty to inform fixed-term workers of vacancies for permanent positions but are not obliged to automatically offer the role to the fixed term employee. 

However, I am not satisfied section 10(2) has been complied with in circumstances where the Complainant was not aware of the previous vacancy notice for a permanent position with the Respondent in September.      

Moreover, it is clearly apparent from the Complainant’s reaction to the impugned vacancy notice in October that she was not aware the Respondent was advertising a permanent position at that time. 

I am of the view the Respondent should have made “a general announcement at a suitable place in the undertaking or establishment” advising staff that there would be a permanent position advertised. 

I note the Respondent submits the Complainant did not have the relevant experience for the TL role.

I note the experience required for the role is two years and I note at the time of advertising in October the Complainant had 17/18 months working for the Respondent.  It could be argued that in situ experience can prove to be more desirable or valuable than the experience of a potential candidate who is completely new to the business. 

I note the Respondent BB submits he had hoped the Complainant would evolve but that there were limitations and that she was “brilliant with customers and they were happy to have her there but there was a ceiling.” 

Notwithstanding all of the above, I am satisfied the Complainant was not aware there was a permanent position available as advertised.  Accordingly, I find she was not afforded the same opportunity to secure a permanent position other as other employees. 

Nothing turns on whether or not the Complainant would have been successful at interview because that is unknown and unknowable in circumstances where there was no interview. 

I am satisfied the responsibility for notifying the Complainant of a permanent position in fact any permanent position rested with the Respondent in accordance with section 10(2) set out above

On the application of the relevant statutory provision set out in section 10(2) I am satisfied a case has been made out to show that the Complainant was treated less favourably than comparable permanent employees.

Decision of adjudication officer under section 41 of Workplace Relations Act 2015

14. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of this Act shall do one or more of the following, namely—

(a) declare whether the complaint was or was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

For the reasons set out above I find this complaint in part to be well-founded and I direct the Respondent to pay to the Complainant the sum of €6,916.00 which I consider to be just and equitable having regard to all of the circumstances.    

Access to training

The Complainant submits that one of her permanent comparator colleagues is undertaking a training course and she never got that opportunity.  I note the Respondent submits the course in question is a dispensary course under the auspices of the Irish Pharmacy Union that comes with a cost of between €7k and €8k and it is submitted the comparator permanent employee has been with the Respondent for three and a half years. 

I note, as regards access by a fixed-term employee to appropriate training opportunities, the Act provides that such access to appropriate training shall be provided by an employer “as far as practicable.”  I note the Respondent submits there no formal structured training programme in place.  Therefore, I am satisfied the Complainant was treated the same as permanent employees in this respect. 

I am of the view it would have been impracticable for the Respondent to pay for the Complainant to undertake the dispensary course in question in circumstances where the Complainant’s FTC might have ended mid-course or at a minimum before she had completed the course.

For the reasons set out above I find this element of the complaint to be not well-founded. 

CA-00069309-001

For the reasons set out above I find the Complainant was not discriminated by reason of her gender and nor was she discriminated against in her conditions of employment.  Accordingly, I decide this complaint is not well-founded. 

CA-00069309-002

For the reasons set out above I decide this complaint is not well-founded. 

CA-00069309-003

For the reasons set out above I decide this complaint in part is well-founded and I direct the Respondent to pay to the Complainant the sum of €6,916.00 which I consider to be just and equitable having regard to all of the circumstances.   

This amount is by way of compensation for a breach of the Complainant’s statutory right and is not in respect of remuneration including arrears of remuneration.