Complainant

Respondent

Parties

Dora  Czegeny

The Temple Bar Tavern Limited Fitzsimons Hotel

Representatives

Mr P Maier BL instructed by Anthony Collier ,Collier Law

Andrea Montanelli  of Peninsula Business Services Ireland

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-00071548-001

13/05/2025

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

CA-00071548-002

13/05/2025

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

CA-00071550-001

13/05/2025

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

CA-00071550-002

13/05/2025

The issues in contention concern Employment Equality and supporting Employment information complaints by a Floor Staff Person against a Restaurant & Bar.

The employment began on the 31st March 2024 and ended on the 30th August 2025 with notice to the 13th September 2025.

The rate of pay was stated by the Complainant to have been €13.50 per hour for variable hours per week.

1:1         Section 77 of the Employment Equality Act, 1998   CA: - 00071550-001

The Complainant was represented by Mr Maier BL instructed by Collier Law, Solicitors. Extensive Oral testimony was given by the Complainant which was supported by a detailed Written Submission. The Equality compliant was on the grounds of Gender, Family Status, Age, & Racial Origin. Grounds of Failure to Secure Employment and Discrimination in regard to Promotion were withdrawn at the Hearing.

In essence the Complaint was that, firstly, the Complainant had been subjected, following informing the Respondent of her Pregnancy, to a very inappropriate series of verbal exchanges with Ms KH, her General Manager, regarding the Pregnancy and possible options thereto. This had completely psychologically stressed and upset the Complainant. It had made her very fearful of losing her employment.  In January 2025 her work hours were drastically reduced further adding to pressure regarding the Pregnancy. The Respondent did not carry out any proper H&S Risk Assessments as would be required by maternity legislation. The Complainant had raised a formal grievance on the 13th May 2025 with Mr P, the HR Manager. This had never been actively investigated as Mr P stated that he would have to wait until the Maternity Leave was over.

The Complainant had gone home to Hungary to have her baby. By the end of August, the prospect of returning to work at the Respondent had completely psychologically stressed and upset her. She feared the prospect of how Ms KH would treat her and a repetition of the appalling behaviours of late 2024. She resigned rather that come back.

In summary her Complaint revolved around how she had been treated in late 2024 – she had gone on Sick leave (following Holidays) in late January 2025. This had continued into her Maternity Leave March 2025.

Mr Maier BL cited extensive case law precedents and vigorously cross-examined Ms KH -the Respondent Witness.

1:2        Section 7 of the Terms of Employment (Information) Act, 1994 CA: - 00071550-002

The Complainant alleged that her Hours of Work were unilaterally reduced in January 2025 without proper notice as required by the Act. The Complainant maintained that she had a Full-Time contract but was instead threated as having only a Part Time Contract.

2:1       Section 77 of the Employment Equality Act, 1998   CA: - 00071550-001

The Respondent was represented by Ms Montanelli of Peninsula Business Services Ireland. Extensive Oral testimony was proffered supported by a detailed Written Submission.

In essence Ms Montanelli relied on Section 85 A of the Act – the Burden of Proof Section to argue that the Complainant had never established a proper initial Prima Facie case. The case was replete with numerous assumptions and inferences that had no evidential basis. The Complainant had to, under Section 6 of the Act demonstrate that.  

“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”

The Respondent argued that apart from allegations and assumptions there was no evidence or proofs to support a situation of unfavourable treatment.

Extensive Oral Testimony was given by Ms KH, the General Manager, who had interacted, at length, with the Complainant. Much of the case appeared to resolve in these interactions. Ms KH, under Oath, portrayed a picture of genuine care for the Complainant’s wellbeing in a difficult situation. They were both ladies and Hungarians living abroad.

As regards use of Internal Procedures the Responder argued that the Complainant had resigned her positon before her Grievance, lodged while on maternity leave, could be fully investigated on her return to work.

In summary the Respondent argued that the Complainant had failed to establish a necessary Prima Facie case. On this basis the complaint should be dismissed.

Extensive case law was cited by Ms Montanelli – especially Southern Health Board v Mitchell, DEE011 [2001] ELR201 and Melbury Developments V Arthur Velpetters (EDA0917) focused on the Burden of Proof of issue.

2:2        Section 7 of the Terms of Employment (Information) Act, 1994 CA: - 00071550-002

The Complainant was always employed on a Part Time Contract. Hours across the business had to be reduced in late 2024 due to a seasonal downturn. All Stafff had been notified on this by Circular Letter / e mail of the of the 18th December 2024. The Complainant herself had requested reduced working hours to assist with a Social Protection Application for the “20 Hour” per week payment.

There was no unilateral change to her basic Contract of Employment. The complaint can have no substance.

3:1       The Legal Position

Employment Equality Act, 1998 complaint – CA - 00071550-001

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

 In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being

1.      In the Complainant covered by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to being a claim?

2.      Was she discriminated against?

3.      Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

4.      Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2      Was the Complainant covered by the Discrimination provisions of the Act?

In her complaint form as clarified at the Oral Hearing she pointed to Gender, Age, Race, Family Status, Harassment and victimization Grounds.

Clearly, she was a female, was pregnant at a relatively young age and non-Irish but membership of a particular category is not in itself grounds for a Discrimination complaint.

3:3        The Burden of Proof.

The Employment Equality Act Section 85(A) requires that the Respondent Employer effectively establish that the alleged Discrimination did not occur.

To clearly establish this fact a detailed review of all evidence both Oral and Written is required.

3:4          Review of the Evidence both Oral testimony and Written submissions.

Oral Testimony was crucial to this case. The key witnesses were the Complainant and the Manager, Ms HK. Both gave extensive Oral testimony under sworn Oath. Serious personal and confidential background issues were evident that influenced exchanges. The basic Complainant issue was that the Complainant was a very vulnerable lady in her very early twenties with poor English, pregnant and far from her parental home in Hungary.

The Manager was also Hungarian and, in her evidence, tried to explain that she had great initial sympathy for the Complainant.  She had had relevant comparable experiences issues in her early life and had outlined various options to the Complainant that were very possibly upsetting in a difficult time. The Manager felt that she was offering good advice based on life experiences.

The evidence of the Manager and the Complainant was obviously very heartfelt with considerable emotional toll on both in presenting their evidence. Most importantly there was no suggestion of ill will in any of the exchanges between the parties.

These informal conversations had seriously upset the Complainant and eventually lead to her taking Sick leave in January. She admitted that that she had claimed Medical Pregnancy issue but in reality, it was stress from the interactions with the Manager and the perceived fall out with other staff.  She had then gone home to Hungary to have her baby with a subsequent decision not to return to Ireland.

The difficult question was whether or not the very personal exchanges with the Manager, which were at the root of the case, satisfied the Discrimination, Burden of Proof, questions of Section 85A of the Act.

The Respondent argued throughout their evidence that the case lacked Legal Specifics -in effect that there was no prima facie case presented other than vague assumptions. Case law to this point was presented in detail. However, the Complainant was a young pregnant lady, far from home, and entitled to the special benefits of protection under the Act.

In Employment Equality Law by Bolger, Bruton and Kimber, Roundhall ,2012the Burden of Proof issue is discussed at length. Sections 2:214 to2: 218 refer.

Section 2:218 is worth noting for the Author’s views on Pregnancy - albeit no direct dismissal took place in this case.

2-222

The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy.371 In other words the rules of burden of proof have been moulded in a manner to take specific account of the jurisprudence on pregnancy.

(Underlined by Adjudication Officer)

3:5      Adjudication Conclusions Employment Equality- CA-00071550-001

Chapter 4 – four Gender and Pregnancy of the above referenced text is also particularly relevant.

Paragraph 4-170 is worth noting - P199/200

Unfortunately, whilst pregnancy discrimination in the workplace has been outlawed, it does not follow that the law has been effective in preventing such discrimination in any meaningful way. Women continue to experience high levels of unfavourable treatment in the workplace due to pregnancy and on their return from maternity leave, even though that is blatantly prohibited in law. Very little of what happens in the workplace seems to be challenged in litigation and therefore, for all the law’s robust outlawing of such treatment, its effectiveness in supporting mothers in the workplace is deeply questionable.

Reflecting on the above Authorities and the heartfelt Oral Testimonies the Adjudication view has to be that the “Conversations” with the Manager, while not ill intentioned in any way, has to fall under the Discrimination heading. They covered issues such as the age of the Complainant, her nationality (being far from home), H& S issues and some very personal options.

A finding of Discrimination, ultimately relating to Pregnancy, has to be made. However, in considering redress the overall context has to be taken into account.

In relation to the Victimisation complaint the evidence, especially the oral testimony from the Parties, while very forceful, did not adequately meet the legal standards required here. Victimisation requires a presumption of malice. This was not present here.

3:6 - Section 7 of the Terms of Employment (Information) Act, 1994 CA -00071550-002

Having reviewed the evidence here the Adjudication view has to be that the Complainant’s Contract of Employment provided for changes in Hours of Work. It was not possible to agree with the Complainant’s complaint.

Discrimination, Maternity