EDA266

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00049022 (CA-00060257-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts,

1998 to 2015 on 6 August 2024. A Labour Court hearing took place on 25 February 2026.

The following is the Determination of the Court: RE]

DETERMINATION:

1. Background to the Appeal

This is an appeal by Ms Danielle Dennis (‘the Complainant’) from a decision of an Adjudication Officer (ADJ 00049022, dated 22 July 2024) under the Employment Equality Act 1998. The Complainant’s Notice of Appeal was received in the Court on 6 August 2024. The Court heard the appeal in Dublin on 25 February 2026. The Complainant gave sworn evidence, as did Dr Ciara Carroll and Dr Pierre Antonino on behalf of North City Dental Properties Limited (‘the Respondent’).

As referred to the Court, there were two elements to the Complainant’s appeal: discrimination on the gender ground and victimisation. During the course of the hearing, Counsel for the Complainant formally withdrew the latter element of the complaint. The Complainant submits that the most recent discriminatory event that supports her claim occurred on 19 September 2023. She referred her originating complaint to the Workplace Relations Commission on 27 November 2023. It follows that the cognisable period relevant to the complaint is 28 May 2023 to 27 November 2023.

2. Brief Factual Background

The Complainant is a qualified and experienced Dental Nurse. She commenced in employment with the Respondent on 27 October 2018 and thereafter achieved her professional qualifications. She was promoted to the role of Dental Manageress Nurse in June 2021. In 2021, the Complainant worked an average of 41.73 hours per week and was paid €18.00 per hour. By the end of 2022, her hourly rate of pay had increased to €21.00 per hour. The Complainant went on her first period of maternity leave on 29 April 2022. The Respondent hired a replacement Dental Nurse (Louise) on a fixed-term basis to cover the Complainant’s period of leave which it was anticipated would continue until October 2022. Tragically, the   Complainant’s baby died a number of days after birth. In June 2022, the Complainant requested to return early from her maternity leave but on reduced hours. The Respondent,
having engaged with the other nurses who agreed to amend their working patterns, facilitated the Complainant to return to work on a three-day week equivalent basis, worked over four days, assisting Dr Antonino. The  Complainant had specifically requested that she not be required to work evenings with the Orthodontist. This request was also facilitated. On 16 August 2022, the Complainant informed the Respondent that she was again pregnant and that, as the pregnancy was high risk, she would need to attend more frequent medical appointments that were to be scheduled on Fridays. For this reason, the Respondent agreed not to roster her to work on Fridays for the period up to the commencement of her (second) maternity leave which commenced on 26 January 2023. On 10 April 2023, the Complainant informed the Respondent that she intended to return to work on 10 October 2023.

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On 28 August 2023, the Complainant again engaged with the Respondent regarding her return to work and indicated that her expectation was that she would do on the same working hours that had been in place immediately prior to the commencement of her (second) maternity leave i.e. the equivalent of three full days spread over four days. The Complainant had made her childminding arrangements on the basis of the foregoing. The Respondent informed her that its expectation was that she would return to work according to the schedule
that had been in place prior to her first maternity leave when she had been working an average of 41 to 42 hours per week. The Complainant also learned that Dr Antonino had established a good working relationship with another Dental Nurse (Joanna) and Dr Antonino had expressed a preference to continue working with that Nurse rather than resume working with the Complainant. In the light of the foregoing, the Complainant extended her period of maternity leave by a further seven weeks and then commenced a period of extended sick leave. She did not return to work for the Respondent.

3. The Complainant’s Evidence

The Complainant gave a detailed account of the history of her employment with the Respondent. She told the Court that she worked twenty-nine hours per week following her return from her first period of maternity leave, by agreement with Dr Carroll. She was principally assisting Dr Antonino. At that time, she also worked an additional four hours, one week per  month, on administration. The Complainant said that she had noticed a significant change in Dr Carroll’s attitude towards her from August 2022 onwards once she notified the Respondent of her second pregnancy. She said, for example, that she was frequently questioned about her attendance at pre-natal appointments and her working hours. The Complainant’s evidence was that nobody in the practice told her before she went on her second maternity leave that working arrangements then in place would cease on her return.
According to the Complainant, the Dental Nurse (Louise) who had been hired to cover her (first) maternity leave had been made permanent in September 2022 but had left the practice prior to the Complainant’s expected return from her second maternity leave.

Under cross-examination, it was put to the Complainant that she had been employed on a full-time basis prior to the commencement of her first period of maternity leave and accordingly that she had worked on average of over forty hours per week up until 29 April 2022. It was also put to her that her hours were reduced by agreement on her early return from maternity leave but that it was intended that she would revert to full-time working once Louise’s fixed-term ended in October 2022 but that because she had become pregnant again in the meantime and the pregnancy was a high risk one, the reduced hours arrangement was extended until she went on her second maternity leave in January 2023. It was then put to the Complainant that Dr Carroll’s evidence would be that the Complainant was advised in September 2023 that she would be required to work on a full-time basis on her return from maternity leave on 10 October 2023. It was also put to the Complainant that she was informed in September 2023 that she would not be paired with Dr Antonino on her return.

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The Complainant was asked by the Court if she was aware of the grievance procedure the Respondent had in place and whether or not she had raised a grievance about the issues that gave rise to the within proceedings. The Complainant answered that she was aware of the reference to a grievance procedure in her contract of employment but had not utilized the procedure. In response to further questions from the Court, the Complainant said that she had assumed that the 30-hour per week arrangement put in place following her return from her first maternity leave had become a permanent arrangement once Louise had been made permanent in her role in
September 2022.

She said she further assumed that she would, therefore, return from her second period of maternity leave on the same arrangement i.e. thirty hours per week with no requirement to work after 5.00 pm.

The Complainant was then asked what she understood about Dr Antonino’s position in the practice. She told the Court that he was there as a self-employed contractor. When employed on a full-time basis, she had worked full hours alongside Dr Antonino (who didn’t work evenings) and also worked with the orthodontist after 5.00 pm. Her evidence was that Dr Antonino had decided that he no longer wished to work with her because she had availed herself of two periods of maternity leave in close proximity. She made reference to an exchange of text messages about this that had taken place between her and Dr Antonino which she interpreted as him suggesting that she was unstable as she had availed herself of succession periods of maternity leave. The Complainant told the Court that the exchange of text messages occurred after Dr Carroll had told her that Dr Antonino did not want to resume working with her when she would return from her second maternity leave but that she had never brought the text messages to Dr Carroll’s attention. The Complainant also told the Court that she accepted that the practice had expanded during her second maternity leave period. She also said that a reference made by Dr Antonino in one of his text messages to a colleague referred to that colleague’s level of experience as a dental nurse.

4. Evidence of Dr Pierre Antonino

The witness told the Court that he has worked for the Respondent’s practice as a self-employed contractor for thirteen years. He said that he had generally worked along with the Complainant prior to her first period of maternity leave other than on Mondays. He said that following her return from that initial period of maternity leave, he worked with both the Complainant and with Louise. The witness told the Court that he had been asked by Dr Carroll some two months before the Complainant was due to return from her second maternity leave who his preferred dental nurse would be going forward. He told the Court that he had decided that his preference would be to work with Joanna because he had established an excellent working relationship with her during the Complainant’s absence. The witness clarified that he had never refused to work with the Complainant but had selected Joanna when the Complainant was not available. In reference to the Complainant’s evidence that he had stated in a text message that she was unstable, the witness told the Court that he never said or implied that she was unstable; what he wished to convey in that message, he said, was that he was unstable because of the requirement to adjust to working with different people while the Complainant had been on leave.

The witness went on to tell the Court that, for him, there was no discussion about the matter: if the Complainant were back in the workplace, she would be his Dental Nurse and it would have been in his interest to be paired with her but she didn’t return. Under cross-examination, the witness reiterated that he had never said he didn’t want to work with the Complainant or that he wanted to work permanently with Joanna. He also told the Court that he had sought to reassure the Complainant that nothing had changed between them. He described them as being ‘a couple in the practice’.

The witness’s evidence is that he had been totally unaware that Dr Carroll had told the Complainant that he wanted to work only with Joanna on a permanent basis and had only seen a copy of the text message Dr Carroll had sent to the Complainant stating that at the hearing before the Adjudication Officer.

5. Evidence of Dr Ciara Carroll
The witness told the Court that she had purchased a pre-existing practice and associated premises in 2007. She said that the practice now employs one Dentist directly, along with a number of Nurses/ Receptionists and that Dr Antonino is engaged as a self-employed contractor.The witness was asked about the Complainant’s return from her first period of maternity leave. She said that the Complainant requested to return early and that she was facilitated to do so on compassionate grounds. Her colleagues, she said, agreed to reduce their working hours to make it possible for the Complainant to return early but that the arrangement put in place at that time was never intended to be a permanent one and had been due to cease the following October. As things turned out, she said, the Complainant was struggling with work when she became pregnant a second time and was, in the witness’s opinion, finding it difficult to be on her feet. For that reason, the practice continued with the Complainant’s part-time arrangement until she went on maternity leave again in January 2023 during which period the Complainant worked alongside Dr Antonino, the witness and the Orthodontist at different times.

The witness told the Court that the Complainant had given her very little notice of her intention to return to work from her second period of maternity leave. She said that she herself was due to be on annual leave during the week the Complainant intended to resume work, however, it was her intention to do her best to facilitate the Complainant. She said that the Complainant was to be put back on a full-time arrangement as per her contract of employment although they had not had a detailed conversation about the roster as the communication had been largely over text other than when the Complainant came into the practice to collect her present when they spoke briefly.

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According to the witness, the Complainant had requested to be given her full contractual hours when she had been in touch with the witness some two months before she was due to return. The witness emphatically denied that the Complainant had ever requested to return to work on a part-time basis. The witness’s evidence then turned to her interaction with Dr Antonino regarding the Complainant. Her recollection was, she said, that Dr Antonino had been adamant that he wanted to work with Joanna going forward and had never intimated that he wanted to work with the Complainant on her return to work. The witness said that she had raised the issue with Dr Antonino in the first place because she needed to know where she could assign the Complainant when making up the rota for her return. The witness told the Court that she was not privy to the text message conversation that had taken place between Dr Antonino and the Complainant.

6. Burden of Proof
Section 85A(1) of the 1998 Act provides as follows in relation to the burden of proof on a Complainant who alleges
discriminatory treatment contrary to the Act: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:
“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.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard: “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.

The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the
most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

 In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

7. Discussion and Decision

The key issue on which the Complainant’s case turns relates to the working arrangements to which she was entitled to return following the conclusion of her second period of maternity leave in October 2023. Her evidence is that she had made the assumption that the part-time working arrangement that had been put in place following her early return from her first period of maternity leave had morphed into a permanent arrangement in or around September 2022 when her temporary replacement’s fixed-term contract was made permanent by the Respondent. On the other hand, Dr Carroll’s evidence is that the fixed-term arrangement was always that – a temporary solution put in place initially to facilitate the Complainant’s early return, on compassionate grounds, from her first maternity leave following the tragic death of her baby. That arrangement, according to Dr Carroll, was then continued following the Complainant’s notification to the Respondent of her second pregnancy until she commenced her second period of maternity leave in January 2023.

The Complainant has not presented any evidence to the Court that refutes that given by Dr Carroll regarding the continuing temporary nature of the part-time working arrangement put in place for her in the time she worked between her two periods of maternity leave. Nor was there any evidence before the Court from which the Court could infer that the Complainant’s full-time contract of employment had somehow by operation of law or otherwise been transformed into a contract for part-time employment.

 It follows, therefore, that the Complainant has not established “facts [that] are of sufficient significance to raise an inference of discrimination” with regard to the Respondent’s decision that her return from her second maternity leave would be on terms consistent with those set out in her written contract of employment. Furthermore, the Court found Dr Antonino to be a very credible witness who is manifestly well-disposed to the Complainant. The Court does not accept that Dr Antonino ever sought to depict the Complainant as ‘unstable’ and

The written submission presented to the Court by the Complainant’s legal representatives is fundamentally misleading in this regard. The Court accepts Dr Antonino’s evidence, when asked a number of months before the Complainant’s scheduled return from her second maternity leave which Dental Nurse he wished to work with going forward at that time, was Joanna – at a time when had no sight of the Complainant’s return. The Court accepts, however, that he and the Complainant had had an excellent working relationship and that in the longer term his abiding preference would have been to resume that working relationship once the Complainant had returned work. Regrettably, she found herself unable to do so.

In summary, the Court finds that the complaint of less favourable treatment on the gender ground as alleged by the Complainant herein is not well-founded. The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
JNF	______________________
11/03/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Julie Nicholl-Flood, Court Secretary.