Complainant

Respondent

Parties

Elena Ecaterina Raluca  Gherasim

AFM Facilities Limited

Representatives

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-00065821-001

06/09/2024

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

CA-00065821-002

06/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00065821-004

06/09/2024

The Complainant states that she commenced employment with the Respondent on 3 April 2023 as a cleaner under a fixed-term contract.

She submits that on 13 October 2023 she informed the Respondent that she was pregnant. At that time, her initial fixed-term contract had expired. She contends that the Respondent proposed only a one-month renewal, which was subsequently extended to a six-month contract following intervention by her manager. She states that this contract was issued late and backdated.

The Complainant asserts that, following notification of her pregnancy, she was subjected to adverse treatment. In particular, she states that a client at the site where she worked made it clear that she was not welcome because of her pregnancy, and that she was subjected to shouting and hostile behaviour.

The Complainant submits that she was effectively removed from the site, placed on reduced or no hours, and asked to move to another location without explanation. She states that, due to the treatment she experienced, she went on sick leave.

The Complainant contends that upon indicating her readiness to return to work, she was not provided with hours and her employment came to an end on 3 April 2024 by way of non-renewal of her fixed-term contract.

In respect of her complaint under the 1977 Act, the Complainant submits that the non-renewal of her contract constituted a dismissal and that the reason for that dismissal was her pregnancy.

In respect of her complaint under the 1998 Act, she submits that she was subjected to discrimination on the gender ground, specifically pregnancy, including less favourable treatment, failure to protect her from harassment and reduction in working hours.

The Complainant further submits that she attempted to invoke the statutory procedure by submitting an ES1 Form in February 2024 but did not receive a substantive response from the Respondent. In response to questions from the Adjudication Officer, the Complainant confirmed that she did not refer nor was she pursuing a complaint under the Equal Status Act 2000.

In response to questions regarding mitigation of loss, the Complainant confirmed that she had not made any efforts to obtain alternative employment following the termination of her employment with the Respondent.

The Respondent was represented by its HR Manager. The Respondent denies that the Complainant was unfairly dismissed or subjected to discrimination and submits that her employment ended upon the natural expiry of a fixed-term contract.

The Respondent states that the Complainant was employed on successive fixed-term contracts, the most recent of which was due to expire on 2 April 2024. It submits that the Complainant was aware of the fixed duration of her employment and that the contract ended in accordance with its terms.

The Respondent outlines that a meeting took place in November 2023 following a complaint from a client regarding the Complainant’s use of on-site equipment for personal purposes during working hours. It is submitted that the Complainant acknowledged this conduct. Notwithstanding this issue, the Respondent decided to extend her employment for a further six-month period.

The Respondent states that it was during this meeting that it became aware of the Complainant’s pregnancy and maintains that the decision to renew her contract following that disclosure demonstrates that her pregnancy was not a factor in any adverse treatment.

The Respondent further submits that, following the disclosure of her pregnancy, the Complainant raised concerns about her ability to perform certain duties. In response, the Respondent states that it took steps to accommodate her, including considering a reduction in hours, adjusting duties, and offering relocation to an alternative site where the workload would be less physically demanding. It is submitted that these measures were discussed and agreed in principle with the Complainant.

In relation to January and February 2024, the Respondent states that the Complainant went on sick leave and did not initially provide medical certification or confirm her return date. It is submitted that, in accordance with company policy, she was not rostered pending confirmation of her availability. The Respondent states that it attempted to make contact with the Complainant regarding her return and the implementation of revised working arrangements.

The Respondent denies that it failed to respond to the Complainant’s correspondence and submits that her ES1 notification was received and that a response issued by post.

The Respondent further denies any knowledge of a formal complaint of bullying or harassment. It submits that no complaint was made through internal procedures and that, had such a complaint been received, it would have been investigated in accordance with company policy.

The Respondent also raises issues concerning the Complainant’s attendance and conduct, including instances of lateness, absence, and an incident in February 2024 where another individual attended work and clocked in on her behalf without authorisation. It submits that this was a serious matter raising concerns regarding compliance and trust.

The evidence of the HR Manager was supported by that of an Area Manager who had direct responsibility for the relevant site where the Complainant worked. The Area Manager confirmed the matters outlined above, including the circumstances of the November 2023 meeting, the renewal of the Complainant’s contract following disclosure of her pregnancy, the steps taken to accommodate her concerns, and the issues arising in early 2024 in relation to attendance and conduct. The witness maintained that the Complainant’s pregnancy did not influence the Respondent’s decisions and that she was treated in accordance with company policy.

In concluding submissions, the Respondent maintained that the Complainant was not subjected to less favourable treatment on the grounds of pregnancy, that her fixed-term contract was extended after disclosure of her pregnancy, that reasonable steps and accommodations were provided, and that her employment ended by reason of the expiry of a fixed-term contract. It denies that any unfair dismissal or discriminatory treatment occurred.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

In resolving the conflict of evidence between the parties, I have had regard to the totality of the evidence, including the contemporaneous documentation and the consistency of the parties’ respective accounts. I found the Complainant’s evidence to be inconsistent in material respects and not supported by the contemporaneous documentation. In those circumstances, I attach limited weight to her evidence where it conflicts with that of the Respondent.

CA-00065821-001: Unfair Dismissals Act 1977 (as amended)

The first issue for determination is whether the termination of the Complainant’s employment constitutes a dismissal within the meaning of the 1977 Act.

It is not in dispute that the Complainant was employed on a fixed-term contract which was due to expire on 2 April 2024. The Respondent’s position is that the employment relationship ended by reason of the expiry of the fixed-term contained within the written terms and conditions of employment. The Complainant contends that the non-renewal of her contract due to her pregnancy amounted to a dismissal giving rise to a claim under the 1977 Act.

Having considered the evidence, I am satisfied that the Complainant was employed under a fixed-term arrangement, the duration of which was known to her. I accept the Respondent’s evidence that the contract was renewed for a further six-month period following a meeting in November 2023, notwithstanding the existence of a client complaint and after the Complainant had disclosed her pregnancy.

While the Complainant takes issue with the backdating of that contract, I am not satisfied on the evidence before me that this was done for the purpose of circumventing statutory protection. Rather, I accept the Respondent’s explanation that the contract reflected the agreed extension arising from that meeting.

In accordance with section 1(c) of the 1977 Act, the expiry of a fixed-term contract without renewal constitutes a dismissal within the meaning of the Act. I note that the contract in this case did not contain a provision excluding the application of the 1977 Act in accordance with section 2(2)(b). Accordingly, I am satisfied that the termination of the Complainant’s employment by reason of the expiry of the fixed-term contract constitutes a dismissal within the meaning of the 1977 Act.

I further note that the evidence establishes a range of issues arising in late 2023 and early 2024, including client complaints, uncertified absence, lack of clarity regarding the Complainant’s return to work, an incident where she was significantly late for work and arranged for another individual to clock in on her behalf without authorisation, and an incident involving another individual attending work in her place. While I do not make findings as to whether these matters would, in themselves, justify dismissal, they form part of the overall factual matrix.

I also attach weight to the fact that the Complainant’s last day at work was 15 February 2024. While she furnished a medical certificate thereafter, she accepted in evidence that she made no further contact with the Respondent with a view to returning to work, other than the submission of an ES1 form dated 21 February 2024 and a request for a maternity benefit documentation. In particular, she did not engage with the Respondent regarding her return to work following the expiry of her medical certification or in relation to proposed adjustments to her working arrangements. I note also the evidence that the Complainant intended to return to Romania, which ultimately occurred. These matters are relevant to the overall context in which the employment relationship came to an end. I am satisfied that the submission of an ES1 form does not constitute engagement with the Respondent in respect of a return to work.

The Complainant contends that the non-renewal of her contract was attributable to her pregnancy. I have carefully considered that submission in light of the evidence as a whole. I attach significant weight to the fact that the Respondent renewed the Complainant’s contract after being made aware of her pregnancy. This is not consistent with an intention to terminate her employment on that ground.

Having regard to the totality of the evidence, including my findings in relation to the Complainant’s credibility and the contemporaneous documentation, I am not satisfied that the difficulties which arose in the employment relationship were attributable to the Complainant’s pregnancy. Rather, I find that they are more likely explained by workplace issues and the Complainant’s disengagement from the employment in the period leading up to the expiry of her contract.

In those circumstances, I am not satisfied that the dismissal was unfair. Accordingly, I find that the complaint under the 1977 Act is not well founded.

CA-00065821-002: Employment Equality Act 1998 (as amended)

Preliminary Issue – Time Limits

The first matter I must decide is whether the complaint was referred within the statutory time limit set out in the 1998 Act.

On the first day of hearing, the Complainant confirmed that her complaint under the 1998 Act related to alleged discriminatory treatment during the course of her employment and that she was not pursuing a claim of discriminatory dismissal.

The complaint form records the date of the most recent occurrence of discrimination as 3 April 2024. However, it was clarified at hearing that this date had been included on the basis that the complaint originally encompassed an allegation of discriminatory dismissal, which is no longer being pursued.

The Respondent submitted that the Complainant’s last day at work, and the last date on which there was any communication from her, was 15 February 2024. It was contended that any alleged acts of discrimination must therefore have occurred on or before that date and that the complaint is out of time.

I note that section 77(5)(a) of the 1998 Act provides that a claim for redress must be referred within six months of the date of the occurrence of the discrimination or, where a series of acts is relied upon, the date of the most recent occurrence.

No formal application was made by the Complainant for an extension of time pursuant to section 77(5)(b) of the 1998 Act, nor was any evidence adduced during the hearing to support such an application.

In closing submissions, and in response to questions from the Adjudication Officer, the Complainant’s representative stated that the complaint was submitted late due to personal circumstances, including that the Complainant had returned to Romania and matters relating to the representative’s own personal circumstances. However, this explanation was not supported by evidence and was not advanced as part of a formal application for an extension of time.

In any event, even if I were to treat that submission as an informal application, I am not satisfied that the circumstances outlined would constitute “reasonable cause” within the meaning of section 77(5)(b) of the 1998 Act. In that regard, I adopt the approach set out by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338), namely that the explanation for the delay must both explain the failure to present the claim in time and be such as to excuse that failure. I am not satisfied that the explanation offered meets that standard.

In circumstances where the Complainant is no longer pursuing a complaint of discriminatory dismissal, I am satisfied that the last alleged act of discrimination occurred no later than 15 February 2024. The complaint having been referred to the WRC more than six months after that date, I find that it is out of time.

Accordingly, I find that I do not have jurisdiction to inquire into the complaint under the 1998 Act.

CA-00065821-004: Organisation of Working Time Act 1997

This complaint was withdrawn at the hearing.

CA-00065821-001: Unfair Dismissals Act 1977 (as amended)

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

CA-00065821-002: Employment Equality Act 1998 (as amended)

For the reasons set out above, I decide that I do not have jurisdiction to hear this complaint.

CA-00065821-004: Organisation of Working Time Act 1997

This complaint was withdrawn at the hearing.