Complainant

Respondent

Parties

Jelena  Koroleva

Tirnaneill Mushrooms Limited

Representatives

Ciaran Doherty B.L. instructed by  Wilkie & Flanagan LLP Solicitors

Nicola Murphy Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00064127-001

18/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064127-003

18/06/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

This matter was heard in conjunction with Case ADJ 00052616.

The complainant did not have 12 months continuous service as an employee of the respondent.  She was employed with the respondent from 21 August 2023 to 5 March 2024 when her employment was terminated.

I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

The respondent submitted that as the complainant did not have 12 months service in employment, she is not permitted to avail of the protections of the Act.  The respondent also noted that at all material times the complainant was in its employ.

The respondent submitted that the complainant was dismissed on the basis of her performance while employed on a probationary basis due to her failure to complete safety documentation and on the basis of her lack of English proficiency.

The first witness noted that in relation to the preliminary matter, who was the correct employer, she worked both for this complainant and the complainant in the related case.  She stated that the complainant was employed as engaged for the first four weeks and then her pay route changed.  There was no record of how it was changed, and it appeared that she was assigned to the alternative respondent as an employee for five months. It was confirmed however that her employment was always with this respondent in that the wages originated with the respondent.

The next witness for the respondent was the technical manager. She noted that there were five farms involved in the cooperative and that as it was a food industry there were food safety audits conducted regularly. She noted that the complainant needed more time and effort to complete tasks than others and that her level of written competence was not sufficient to progress in the role. She stated that the exams undertaken by the complainant related to a food safety system. She noted that initially she failed the exam but subsequently passed with the assistance of a reader, provided by the respondent, who read out the exam papers for her.

The witness noted that upon hearing that the complainant was pregnant, the respondent undertook a risk assessment using its ‘expectant mothers’ checklist’ which was in line with company policy.  She noted that everything appeared to be in order as regards safety of the complainant.

She noted that the probationary review template was issued on the 20th of February 2024 and that a planned review on the 26th was cancelled as the complainant refused the opportunity of a review.  She noted that she assigned the complainant a poor rating because she didn't work well with the pickers and that the glass report was absolutely critical for food safety. Broken glass and safety covers could bring the whole production to a close. She noted that the complainant did not put forward any information regarding her version of events. She stated that part of the complainant's job was to check knives but there was no sign at all of any reports relating to the sign off-of the knives. She stated that they were obliged to provide health & safety progress reports to the customer and that these were not done.

Under cross examination she was asked whether the complainant outlined difficulties with English at interview, however she said that she did not as the complainant had indicated that she had Level 3 English. She confirmed that issues with the complainants English emerged during her probation but were not raised directly with her. She did notice that the complainant was continuously provided with training throughout her probation, but she conceded that the first instance of matters being raised with the complainant was at the end of her probation in February. She noted that she had been sitting with the complainant during her employment, coaching her continuously. It was put to the witness that the complainant understood that the meeting of 29 February was to be reconvened, but she indicated that there was never an intention to reconvene this meeting. It was put to her that at no point did the complainant understand that the meeting of 29 February was to dismiss her.  Although this was put to the witness, the witness stated that there was never an arrangement to have another meeting or to reconvene. She noted again that the complainant refused the offer of a probationary review meeting.

The witness noted that the refusal to seek a review was put that the complainant who stopped the meeting and indicated that she strongly believed that she was being discriminated against when she raised issues relating to her maternity leave (which had not yet come about).

When it was put to the witness that the complainant was not considered for further training, having announced her pregnancy, she categorically denied this and noted that the complainant was sent on courses, was fully involved in the preparation for all audits, during and after the announcement.  In response to the suggestion that issues could have been resolved by training, the witness noted that the complainant was given on-the-job training. She further stated that she did not consider herself to be involved in a disciplinary matter regarding the termination of the complainant’s employment. The representative for the complainant put it to the witness that there was ‘an indecent level of haste’ in dealing with matters on the 29th of February and wondered was there a reason was for this haste. The witness stated that the probationary process was invoked before the probationary period concluded.

The next witness for the respondent was the HR assistant. She noted that she signed off the letter of dismissal based on the information received from her manager. The complainant was offered an appeal. Under cross examination she noted that she didn't detail any information regarding the pregnancy as she did not consider it be relevant. She noted that the letter was compiled by their external HR consultancy and although there was a mention of a disciplinary matter in the letter, the were no disciplinary issue raised in relation to the complainant, no disciplinary procedures were followed and that the mention of disciplinary procedures in the letter was an error.

It was put to the witness that the dismissal letter didn't accurately reflect the reasons for the dismissal, however she noted that it did, generally speaking.

Having given evidence in relation to the preliminary matter initially, the proceedings returned to the hear from the HR manager again. She noted that the appeal was in accordance with procedures laid down in the handbook and that the complainant was paid two weeks in lieu of notice. She noted that the complainant received a copy of the notes at the end of the appeals meeting. The appeal upheld the dismissal decision.  Under cross examination she admitted that she had completed the mortgage document indicating the complainant was permanent in her employment.

The complainant submitted that she was dismissed having informed her employer that she was pregnant.  She informed her employer that she was pregnant in October 2023 and again in November 2023 following a hospital scan.   She submitted that from the time of notifying her employer, she felt that she was not getting any level of training or co-operation.

She submitted that her position was reviewed while she was still pregnant and the termination letter issued on 5 March 2024 with immediate effect. She submitted that she appealed that decision and included in that appeal the following facts in addition to other matters, firstly she felt she was dismissed due to being pregnant, secondly, that she had received no prior warning or review of my work which entailed the same job and completion of the same paperwork she had undertaken a number of times previously without complaint, thirdly, that she was given no warning that my level of English was not good enough despite being interviewed for a specific job where the level of English was known to my employer at the outset . She also submitted that she was not given any warning or opportunity to have additional education in the English areas needed specifically for my role.

She submitted that she had submitted a CV indicating that she had level 3 English. She received no warnings nor had any reviews which indicated that her level of English was unsatisfactory or that her performance was inadequate until after she advised her employer that she was pregnant.

It was submitted on behalf of the complainant that the two reasons given to her for the dismissal did not stand up.  Her level of English was never raised and from the outset the respondent were on notice of her level of English.  It was submitted that this was a disciplinary related dismissal.

In evidence the complainant outlined that once she notified her employer of her pregnancy, she was provided with no further training during the remainder of her probation period.  She stated that she attended an ad hoc meeting in February 2024 but did not understand that it was a disciplinary meeting.  She stated that the March dismissal letter outlined that she was dismissed for disciplinary reasons and that the process was not followed.  She stated that she felt that pregnancy was one of the reasons for her dismissal.

The complainant stated in evidence that she had applied for the job and had level 3 English. She noted that she indicated that she would have problems with writing and reading emails at that time. The complainant outlined that she officially told her employer of her pregnancy in November. She stated that there was a normal reaction to her announcement. She stated that things changed in relation to her work in that her training requests were ignored and that there was no time given to her to look at anything. She stated that work she had previously undertaken was then given to others to do and that it seemed that they were not interested in training her to do anything else. She stated that there were two training certs on her file, post announcement training certs awarded in November and December. She confirmed that she passed the HACCP exam on the second attempt with the assistance of a reader, provided by her employer. She confirmed that the respondent completed mortgage application letter for her indicating she was a permanent employee.

The complainant noted that her probation concluded in February 2024, and she had an informal meeting with one of the managers. She stated that the conversation started by pointing out her mistakes and indicating to her that they wanted to let her go.  The complainant stated that she was told that perhaps the company would get someone else to fill her vacancy when she went off on maternity leave.  She said that her colleague noted that she would speak to HR and that maybe they would do something else.  She stated that the meeting was never reconvened like she thought it would be.  She also noted that she did not complete a technical performance review.  She also stated that she had a copy of it but never made a copy of it for herself.

The complainant stated that there was never any form of disciplinary process or dismissal.  The complainant stated that she was shocked to be let go and that she should have been given written notification of the meetings and have been provided with some procedures.  She stated that improving her English would have required training and she wished to continue with her learning.  She stated that issues were not presented to her in advance of the meeting which she considered to be an informal chat.

The complainant stated that she believed that as there were no meetings regarding the termination of her employment that the dismissal revolved around her pregnancy. She stated that her level of English was known from the start and that nobody sought any further detail regarding her language proficiency. She stated that she decided to bring this case because she was dismissed illegally.

The complainant stated that her child was born at the end of May 2024 and that she is not currently in employment. She stated that she began looking for work in January 2025 and further stated that she could not accept jobs that she had been offered due to the difficulty with finding childcare.  Accordingly, she remained unemployed.

Under cross examination the complainant was asked whether her level of English had any daily impact on her work performance, but she repeatedly stated she didn't understand the question. She stated that for work-related questions she could understand matters perfectly well but noted that she did need help in answering emails, both for understanding them and drafting responses.

She was also asked how she could reconcile her alleged level in English with the need for a reader for the second attempt to undertake the exam but stated that she was not able to fully understand the questions in the exam until they were read out to her.

The witness restated that she notified her pregnancy to her employer in November 2023 but also mentioned that she informed her manager earlier than that. She could not remember the exact date. She stated that prior to dismissal she was not advised of any problems or issues. It was put to her that she stated in evidence that she was dismissed just after advising her employer of her pregnancy but that the actual dismissal took place five months later. She stated that she was not sure why they waited so long. She was asked about her allegation that tasks were given to other employees, but when she was asked to provide examples, she stated noted that she could not remember any specific examples. This issue was put to her in a different fashion but she still was unable to provide any examples.

It was put to the complainant that she had stated that she received no level of training following her pregnancy announcement, but it was noted that she was doing training online during working hours, she confirmed this and confirmed that she was receiving training in October, November and December. She was asked whether preparation for visits and audits would also be considered on-the-job training, but she stated that it was more of an experience. She was asked whether she partook of the training and/or experience in January 2024 but stated that she could not remember whether she did.

As regards the glass audit she undertook, she stated that she copied previous audits but that no broken glass was noted in it. She stated that she only did what she was told to do. It was also put to her that the knife records were not completed properly, and she had no answer for this.

It was put to her that the dismissal letter noted her failure to complete documentation, and she was asked whether she considered that this was a performance issue? She answered no and disagreed with that assertion. She also stated that she completed documentation that it was saved on her work computer.

CA-00064127-001 Unfair Dismissal

Continuity of Service and Protection under the Unfair Dismissals Act

As a preliminary matter the respondent indicated that the complainant did not have the requisite 12 months continuous service to avail of the protections of the Act.  The complainant’s representative indicated that where dismissal was concerned wholly or mainly with pregnancy, protection of the Act was available to an employee with less than 12 months service.

Section 2(1)(a) of the Act provides as follows:

2.—(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him …,

 Section 6 of the Unfair Dismissals Act 1977 – 2015 (“the Act”), provides as follows:

“(1)  Subject to the provisions of this section, the dismissal of an employeeshall be deemed, for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2)  “Without prejudice to the generality of sub-section 1 of this section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal if it results wholly or mainly from one or more of the following:

[subsections (a) – (e) are not relevant for this case.]

(f)   …the employee’s pregnancy, attendance at ante natal classes, giving birth or breastfeeding or any matter concerned therewith…”

Section 6 of the Act, therefore, clearly provides that where the dismissal of an employee results wholly or mainly from pregnancy or matters related to pregnancy, the dismissal “shall be deemed” to be unfair.

With a small few exceptions, section 2(1)(a) of the Act provides that an employee who, at the date of the termination of their employment, has less than one year’s continuous service, may not bring a claim of unfair dismissal.  One exception is the category of employees described at (f) above, and one of the effects of the insertion of sub-section (2A) in section 6, is to offer the protection of the Unfair Dismissals Act to an employee who claims that their dismissal was due to pregnancy, even if they have less than one year’s service.

The effect of the legislation set out above is that a dismissal that relates wholly or mainly to pregnancy shall be an unfair dismissal, and that an employee in these circumstances with less than one year’s service may claim protection under the Act.

The Burden of Proof

This complainant alleges that she was dismissed because she was pregnant and she is therefore exempt from the requirement to have completed one year of continuous service to bring a complaint under the Unfair Dismissals Act.  However, she must establish that, on the basis of the primary facts, her dismissal was “wholly or mainly” as a result of her pregnancy to avail of the 12 month exemption.

I have considered the written and verbal submissions of both parties at the hearing of this complaint, and it is my view that the complainant has not established the basic facts upon which it could be presumed that her employment was terminated due to her pregnancy.  I have reached this conclusion for the following reasons:

·        The complainant stated that following the announcement of her pregnancy she was not provided with any further training.  However, it became apparent from the evidence of both parties that this was not the case, for example her employer went to some efforts to ensure that she passed the required safety exam.

·        The complainant stated that following the announcement, various work tasks were assigned to other colleagues. However, when requested to provide further detail the complainant was unable to recall even one example of such reassignment.

·        I believe that a failure to follow the glass reporting procedures would be considered to be fatal to continuing employment in and of itself by any reasonable employer.

The complainant’s assertion that she was dismissed wholly or mainly on the basis of her pregnancy seems to amount to a mere assertion rather than a fact- or evidence-based conclusion.  In the circumstances I am not satisfied that the complainant has established that her dismissal was wholly or mainly due to her pregnancy.

On the basis of the foregoing I find that the complainant cannot avail of an exception to provision of Section 2(1)(a) of the Act and therefore does not have the requisite service to avail of the protections of the Act.

CA-00064127-003 Terms of Employment Information

The complainant submitted that she was not provided with her proper or any terms of employment information in writing or at least that she was not notified when these had changed.  The respondent accepted that the complainant was enrolled with and was issued with wages slips by a different entity without the complainant being notified of any change.  The first the complainant knew of this was when she received information from the Revenue Commissioners.  The respondent did not provide evidence of having provided the complainant with a written form or her terms and conditions of employment, or of having provided such documentation when the complainants terms changed.

Having regard to the facts of this complaint, I find that the provisions of the Act were contravened and that the complaint is well founded.  In the unusual circumstances of this complaint, I order the respondent to pay the complainant compensation of four weeks which I consider to be just and equitable in all the circumstances. The complainant’s salary amounted to €576.92 per week and accordingly I award the amount of €2,307.68 in compensation

CA-00064127-001 Unfair Dismissal

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant is not entitled to rely on an exception to 12-month continuous service rule laid down in the legislation.  Accordingly, she cannot avail of the protections of the Act.

CA-00064127-003 Terms of Employment Information

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is well founded and that the Act was contravened.  I order the respondent to pay the complainant compensation of €2,307.68 which I consider to be just and equitable in all the circumstances.

Unfair Dismissal – 12 month service requirement – pregnancy related exception – burden of proof not satisfied – complainant cannot avail of the protections of the Act – Terms of Employment Information – complaint well founded – Act contravened – award of compensation