Complainant

Respondent

Parties

Norah  Joyce

Fadeside Limited t/a The Residence Hotel And 1520 Bar

Representatives

Ian Fitzharris BL Instructed by Orlaith J. Byrne & Co.

Pat Mullins O’Flynn Exhams LLP Solicitors

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-00062693-001

09/04/2024

The complainant submits that she was dismissed arising from matters related to maternity and the respondent disputes this.

Preliminary Issue:

In response to the preliminary matter raised by the respondent that the complainant was on probation, the complainant submitted that:

The complainant commenced employment on 08/11/2022, probation had been passed in May 2023 and that even if probation had not been passed, the contract only provides for extension of probation for 11 months and the complainant had been advised on 10/10/2023 that she was dismissed, 11 months and 2 days after employment commenced.

In response to the preliminary matter raised by the respondent that the complainant was not pregnant at the time of dismissal and therefore is not covered by s6(2)(f) of the Act and the WRC does not have jurisdiction under the Act, the complainant submitted that the complainant does not have to be pregnant at the time of her dismissal as set out under s6(2)(f):

the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith

and that a miscarriage is a matter connected with pregnancy,

In response to the preliminary matter raised by the respondent as to whom does the burden of proof rest that the dismissal arose from matters connected with pregnancy, the complainant submitted the burden rests with the respondent and that there is an added onus on the employer to demonstrate it followed fair procedures and an employee cannot be dismissed when they are pregnant unless there are exceptional reasons arising.  Without prejudice to that the complainant submitted that they would proceed first. 

Substantive Issue:

It was submitted that the complainant commenced employment as General Manager with a salary of €60,000 with an eligibility bonus built into her contract

“eligible for participation in our senior managers Performance Award Schemebased on  your performance, as the sole discretion of the Group GM and Board of Directors”  and a 6 months’ probation period that could be extended “but will not in any caseexceed 11 months”.  The complainant’s performance was to be regularly reviewed and where performance was deemed unsatisfactory it would result in “instigation of disciplinary procedure”.  In December 2022 the complainant was advised by Mr Neilon that she would receive additional monies by way of a contractual bonus and the respondent failed to provide this. The complainant’s 6 months’ probation ended on 08/05/2023 and she was told on 16/05/2023 that she had passed her probation by Mr Neilon, there was no extension of probation and this was affirmed by the CEO in June 2023. 

On 06/08/2023 the complainant attended a charity event and was also invited to Bar of the Year awards ceremony representing the respondent following nomination.  The complainant’s role was subject to regular reviews and it was not suggested that the complainant was under performing and the respondent was always complimentary up to the time of her miscarriage. 

Around 15/08/2023 the complainant advised Mr Neilon that she had been offered another position with another company and was dissuaded by Mr Neilon on taking up this other role and did not take it up.  Towards the end of September 2023 the complainant suffered a miscarriage which impacted her physical and mental health and the respondent’s attitude to her changed significantly and it was submitted that the respondent was concerned that she would begin family planning and that they would suffer the commercial consequences of any maternity leave.  The respondent terminated her employment on 17/10/2023 to prevent the necessary 12 month service on grounds of pregnancy and matters connected with pregnancy and the respondent refused to pay the complainant her bonus.

It was denied that the meeting of 10/10/2023 was a probation meeting as it was the complainant who requested this meeting to discuss business matters, her miscarriage and possible shorter hours for time banked.  She was shocked to find out that her employment was terminated at this meeting by Mr Neilon.  When she explained that she had no knowledge of this he told her to “stop it”.  The meeting occurred 9 days after the miscarriage and 5 days after she returned to work.  When the complainant had gone on holidays on 09/09/2023 till 17/09/2023 Mr Neilon had wished her well and said she deserved her holidays.  On 18/09/2023 the complainant discussed future plans for the bar area. A 1:1 scheduled by Mr Neilon was cancelled by him and prior to that on 08/09/2023 an external coach met the complainant and another meeting was scheduled with her coach for 02/10/2023 but the complainant had to cancel owing to her miscarriage.  The complainant had advised Mr Neilon on 29/09/2023 about her miscarriage and was absent from 28/09/2023 till 05/10/2023. 

The complainant was phoned by the HR manager Ms O’Dowd who said that the miscarriage would make the complainant only want a baby more which the complainant replied was not the case and not the plan.  Despite being out sick the complainant attended a work meeting on 05/10/2023.  Ms O’Dowd gave an update to the complainant about a problematic employee and told the complainant that she should not heed stories that the problematic employee said that the complainant would be gone.

The complainant accepted that she bears the burden of proof set out in case law but there are also exceptions and case law precluded dismissal of a female worker at any time during her pregnancy and that to reconcile family life everyone should have a right of protection from dismissal for a reason connected with maternity.  It was submitted that the pregnancy is a special protected period with legal protection for pregnant women.  The burden rests with the respondent to show that the dismissal was fair and that it was unrelated to her pregnancy and there is an onus on the respondent to show that there were substantial grounds justifying the dismissal.  The respondent provided no evidence to suggest that the complainant had failed to meet the core competencies and was not given an opportunity to defend herself and did not provide core competencies, if any existed.  From 11/10/2023 until 10/11/2023 the complainant was unfit to work due to the miscarriage and from December 2023 she actively sought work.  Her losses amount to 19 weeks from when her employment ended, up to securing employment in March 2023 where she secured employment on a salary of €52,000 for 13 weeks.  The complainant then secured a position from June 2023 on a salary of €32,346 gross until end of August 2024.  She made attempts to secure other employment but was unsuccessful and there were also financial losses incurred arising from the bonus of €10,000 that she did not receive.

Case law cited included Pedeschris v Burke UD/599/1999, Web v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, ele Danmark A/S v Handels- og Kontorfunktionærernes Forbund i Danmark (HK) (Case C-109/00) Brown v Rentokil Ltd Case C-394/96., Case C-103/16 (Porras Guisado v Bankia SA), DEE 06/2001 A Company v A Worker, DEE 13/2022 Carroll v Cullen, EDA 08/2022 Trailer Care Holdings v Healy, EDA 14/0223 Lally v Rusek  EDA, O’Brien v Persian properties [2012] ELR211, Ahern v Crocs Hair and Beauty EDA195, A Deputy General Manager v A Hotel Adj-17826,  Herco Investments v O’Sullivan EDD 0316/2003, Bank of Ireland v O’Reilly, 2015 IEHC 241, AG Bracey Ltd v Iles  (1973) IRLR 2010, Cleary v B&Q  [2016] 1 IR276, A Manufacturing Engineer v A Medical Device Company [2019] 30 ELR 104, Shinkwin v Millett EDD 044/2004, Vuletic v Capel Abbey Adj -00044781

Evidence of Complainant:

The complainant gave evidence she started on 08/11/2022 and her conditions of employment were set out in her contract.  There were no issues with her employment and there were normal mistakes with managing a new team and a lot to pick up on from previous manager and it was a positive experience.  In December 2022 work was busy and she got an unexpected bonus of €1,000 and was told it was a year-end bonus dependent on Mr Neilon hitting his targets.  On 08/05/2023 she had a normal 1:1 and she asked about her performance and was told it was going well and was anxious to make sure she was succeeding and it was confirmed she had passed probation and this was also confirmed by another manager in May 2023.  Her Assistant General Manager Mr A was not performing well and was on a performance improvement plan. 

Over the summer of June/July/August 2023 it continued to be busy including with a charity event in August 2023 which raised money.  They were nominated for Bar of the Year on 21/08/2023 and the respondent paid for her and the Assistant Manager to attend and there had been a staff appreciation event on 30/08/2023 and the bar scored well in the mystery shopper test.  She was offered another role with a different bar in August 2023 which she discussed with her manager Mr Neilon, and he said he was sorry to see her go and he told her there would be a future for her with the respondent.  She continued in her role and she had a positive 1:1 and she was going on annual leave from 09/09/2023 till 17/09/2023 and attended a head of department meeting on 19/09/2023 with about 8/9 senior management in attendance and another senior manager discussed the role and said he was happy with the complainant.  She was due to meet an external coach in early October 2023 as the complainant said she struggled with micro management and Mr Neilon had thought it good to discuss with the coach and discuss her grievances and it was very beneficial. 

On 28/9/2023 the complainant was admitted to A&E and found out she had been pregnant and was  having a miscarriage and rang Ms O’Dowd and when she did not answer she phoned Mr Neilon and told him she did not know she had been pregnant and had just found out and had a miscarriage.  Mr Neilon was sympathetic and asked what could be done and she told him she had a sick cert till 06/10/2023.  Then Ms O’Dowd phoned back and the complainant did not wish to talk anymore about it.  Ms O’Dowd said to her that having a miscarriage would make the complainant want a baby and it was about a 6 minute call.  On 05/10/2023 the complainant attended a work meeting although certified off sick.  She had a conversation with Ms O’Dowd and the complainant confirmed she was back at work and that she was still passing blood from the miscarriage but was ok and her reason for the phone call to Ms O’Dowd was about the security guy that she had interacted with. 

The complainant looked for a meeting with Mr Neilon on 06/10/2023 and it was scheduled for 1:45 pm.  The purpose of the meeting was that the complainant wanted to enquire about changing her schedule.  At the meeting he walked towards her and said this is not going to be an easy conversation and that survey results were not good and someone had been served whisky in the wrong glass and there were queues in the other bars but not theirs and was told that she did not have the core competencies.  She started to cry and he said they would go somewhere private and she asked why she had not been given a chance to correct this if he was unhappy and got more upset and he phoned Ms O’Dowd to join them.  Mr Neilon muttered to her to ‘stop it’ and Ms O’Dowd joined and the complainant cried and Ms O’Dowd asked did she want to resign and that she had been on probation and the complainant said she was not on probation.  Ms O’Dowd then said maybe she needed a break as she had a miscarriage.  On 11/10/23 she was given a letter confirming her notice and she said she sent three emails.  The complainant later in her evidence changed her evidence and read into evidence the 3 emails that she thought she had sent but realised some were draft emails that she had drafted but did not send.  The email she did send to Ms O’Dowd after the dismissal meeting was referred to and it read that “she was unexpectantly let go without any notice, disciplinary procedure, or verbal and written probationary related information” and received no response and provided a screen shot at the hearing that she submitted confirmed it had been sent.  She secured another job but some managers would come in to her new employer and she felt uncomfortable and left and took on different work in a factory.  She had not been told in advance that this meeting was about her performance and it was her who scheduled the meeting.  There had been a meeting in July 2023 about the performance of an employee working in security.  The first time she found out she did not have core competencies was the day she was let go.  She knew there was a need for the business to improve.

The complainant made efforts to secure other employment and applied for up to 15 jobs and secured employment March 2024 on a salary of €52,000 and left this job in June 2024 and lost her confidence after that job and suffered anxiety after it.  She secured another job in June 2024 on a salary of €32,000 and finished there in August 2025 and has not incurred any losses after August 2025.  She claimed there were also losses arising from the loss of a bonus of €10,000 plus losses arising for the first 19 weeks that she did not secure employment.

Cross Examination of Complainant:

Under cross examination it was confirmed that the contract references a bonus at “sole discretion” and refers to “performance”.  She confirmed she was claiming €10,000 as that was what Mr Neilon told her it might be and had been told it could be made up of vouchers and cash and through her pension and that everything was on track.  She had been pleasantly surprised with a €1,000 bonus in December 2022 as she did not expect it and that the €10,000 was an incentive for her to work towards.  Her KPI was to turn the team around and Mr Neilon was the group general manager and her line manager and he told her to focus on staff, operations and turn the team around.  The complainant had worked 10 years as an Assistant Manager in another pub and did not mention the bonus when she sent the email when she was dismissed as it was not on her mind.  She did not want to speak to the employer after they let her go and consulted her solicitor around 2024.  

There had been discussions with her manager about people management, retention and hire and that she worked with HR and they adjusted the roster and this helped.  The complainant struggled with micro management  and confirmed that Mr Neilon highlighted that she struggled with this, he advised she was direct with emails which is how she communicated and had been asked to focus on operations  There was a meeting on 16/05/2023 about a security employee which Ms O’Dowd had assisted with and her performance was not raised then and she had passed probation.  Another manager attended that meeting.  She did not know what the KPIs were and thought they were behind targets in May and ahead of targets in July 2023 and when the services of another experienced manager were offered to her, she saw this as peer-to-peer support and nothing was identified as performance issues.  The complainant had consulted her solicitor in January 2024 and had been out of work and her loss of earnings including bonus was mentioned in her submission.

A meeting was held during August Race Week and 18/7/2023 about external coaching and she believed this was offered because of her grievances and she felt she got along well with the external coach and it was an outlet for the complainant to discuss her issues and she was never informed that the coach was there for under performance.  The complainant advised Mr Neilon of her other job offer and he said he would be sorry to see her go.  There was a board meeting on 19/09/2023 and she denied that she was advised of serious concerns of business performance but recalled payroll and cost management was discussed. She did not attend a meeting on 02/10/2023 as she was off sick and she had met the coach on 08/09/2023 which was the first time having got the details of the coach in August 2023.  She did not ask about an appeal and was told she would not get a reference as she failed probation, was not shown respect and was told it was to do with core competencies.

Ms O’Dowd said that the miscarriage would make her want to have a baby even more and the complainant responded that pregnancy had not been in her plan.  The bonus was not mentioned by her as it was not the first thing she was thinking of.  She was told that her employment was ending because whiskey was served in an incorrect glass and she was told she did not have core competencies. The contract did say that her performance would be reviewed and she was not pregnant on the day she was let go.  The relationship with the respondent was largely positive and she had been selected for and completed on-line training including people management, performance management and manual handling.  It was confirmed that the contract said that her performance would be reviewed and that she left the bar industry which she was experienced in.  The complainant did not ask about an appeal and was asked if she wanted to resign as she would not get a reference as the respondent said she had failed probation.  There had been applications for maybe 15 jobs and did not have details of all of them.  She worked in a bar from March 2024 and left in June 2024 as she had lost confidence in the bar industry and then worked in a medical device company.  She confirmed that her contract said that her performance would be reviewed.  Some of the training courses she completed were on line and the manual handling instructor was completed over a couple of weeks and required practical and physical learning and may have cost the company €2000 for her attendance and they did not look to recoup that money.

The emails that she had referenced in her earlier evidence she thought she had sent.  The first email was a draft of her thoughts and the second email which was not sent but which she had given evidence to that she had sent had not in fact being sent.  The 3rd email had been sent when she was calmer and was dated 16/10/203 12:12pm and she had the correct email address for Ms O’Dowd and it did not bounce back.

Preliminary Issue:

It was submitted that the complainant did not have 12 months continuous service at the date of termination of her employment with the Respondent and the complainant was on probation and this probation had been extended.  The complainant did not raise the matter that she was not on probation when her employment was terminated. 

It was further submitted that the Complainant was not dismissed by reason of pregnancy, because she was not in fact pregnant at the time of the termination of her employment and that she was dismissed by reason of lacking core competencies despite extensive internal and external mentoring and while on probation. 

The respondent further submits that the burden of proof rests with the complainant to establish that the dismissal was by reason of pregnancy, before the WRC could assume jurisdiction, and that until this burden is satisfied by the Complainant, that the WRC lacks jurisdiction and that in the interim period, there is no case to answer by the Respondent. The respondent rejects the Complainant’s argument that that the burden of proof rests with the respondent to prove it was not pregnancy related. In order to seek protection of Act, as amended, the claimant herself must bear the burden of proof in showing herself to be entitled to this protection. This she does by showing that her dismissal was on the grounds of pregnancy.

Substantive issue:

The Complainant worked with the Respondent for 11 months as General Manager commencing employment on 08/11/2022 and was employed under a Contract of Employment which provided that the Complainant would be reporting directly to the Group General Manager, Wayne Neilon. The Contract provided the following in relation to the Probationary Period:

“You will be subject to a probation period of 6 months. The probationary period may be extended at the Company’s’ discretion, but will not in any case exceed 11 months. Within the probation period, either party may terminate this agreement by giving 1 weeks’ notice in writing.”

The contract provides the following in relation to termination:-

“Except in circumstances justifying immediate termination of your employment by the Company, you will be entitled to receive the appropriate period of notice set down in the Minimum Notice and Terms of Employment Act 1973 / 1991. Your employment may be terminated without notice for serious misconduct or failure to carry out such duties as may be assigned to you, by the Company from time to time. Termination of 1 month notice from either party is required in writing. The Company reserves the right to terminate your employment prior to the date of cessation, on giving the appropriate notice, set down in the Minimum Notice and Terms of Employment Acts 1973 to 2005. This notice may be paid in lieu of service, if required by the Company. You might sign a termination form, in order to receive your holiday entitlements and any monies owed to you.

The Contract provides the following in relation to performance review:

“Your performance will be regularly reviewed during your employment, which will involve discussions between you and your manager in relation to your performance and conduct. Unsatisfactory performance and conduct will result in the instigation of the Disciplinary Procedure.”

It was submitted that the Complainant was out of work from 18/10/2023 to 15/03/2024 and the complainant is required to provide proof in relation to the attempts on the part of the Complainant to mitigate her loss and details of the Complainant’s new employment together with details of any Social Welfare payments received by the Complainant in the interim period.

It was denied that the Complainant had passed her probationary period. The Respondent was unhappy with her performance and there had been significant engagement with the Complainant for a period of months in relation to her performance. The Complainant acknowledges that her employment commenced on the 08/11/2022, and that she was dismissed on 17/10/2023 which clearly indicates that at the time of dismissal, the Complainant did not have 12 months continuous service. The complainant confirmed she was dismissed for lack of core competencies and not misconduct on her part.  It was denied that the respondent was concerned that she may become pregnant again and go on Maternity Leave.  The complainant was not dismissed for misconduct, and therefore there was no requirement for the invocation of the Disciplinary Procedure. It was obvious at an early stage that the Complainant was struggling with the role, and numerous meetings were held with the Complainant including mentoring and the appointment of an External Coach to assist the Complainant in her role. The respondent denied that the complainant was given an opportunity to resign as an alternative to dismissal.  The Complainant had just moved recently from an Assistant General Manager role and wanted the Respondent to give her a chance as a General Manager and was struggling with the People Management side of the role.

On 14/02/2023 a 1:1 meeting was held between Wayne Neilon and the Complainant to discuss her role, particularly the challenges the complainant was experiencing with people management (Retention 76% and Turnover 27.5%) and her lack of engagement with Commercial & Marketing activities, and the Complainant’s non-attendance at a scheduled meeting on 08/02/2023. It was agreed that the Complainant would utilize support available from HR to improve retention and turnover stats. The Complainant also committed to engaging effectively with Commercial & Marketing to improve sales performance. On the 16/05/2023 a meeting was held with Wayne Neilon, the Complainant and another manager to discuss the business and the complainant’s leadership and performance. The Complainant was still having issues with the team and finding it hard to manage. Wayne Neilon advised the Complainant that they wanted her to succeed in the role and would talk to a peer Manager Mr A about extra support for the Complainant. Mr A was another GM in the group who was successfully running another bar in the group and the Respondent believed he had the right level of experience to support the Complainant’s development on a peer to peer level. On the 11/07/2023 a meeting was held between the Complainant, Mr Neilon and Mr A at the respondent’s premises and it was agreed Mr A would have regular meetings with the Complainant, by way of assistance to the Complainant. However, Mr A advised Mr Neilon he found it very difficult to tie down times with the Complainant to meet. Ultimately, the Complainant failed to attend a number of proposed meetings with Mr A. On the 18/07/2023 a 1:1 meeting was held between Wayne Neilon and the Complainant in The Connacht Hotel. External coaching was discussed for the Complainant and she agreed to engage in coaching. On the 15/08/2023 the Complainant informed Wayne Neilon that she had been offered a position as a General Manager elsewhere and Mr Neilon congratulated the Complainant on the offer and indicated that he would be sorry to see her go if she were to leave. However, at no time, did he state that the Complainant had a future with the Employer.

The Respondent engaged an external Coach for the Complainant who advised on 05/08/2023 the Complainant was not attending her appointments. It was not until the 05/09/2023 that the Complainant first met with the coach. On 19/09/2023 a bimonthly Management Meeting was held with the Complainant and serious concerns were raised in relation to Business Performance, payroll and cost management, in addition to Customer Experience and Cleanliness. A further follow up meeting was scheduled for 28/09/2023 but was cancelled by the Complainant on 28/09/2023. On 29/09/2023, Wayne Neilon was informed by the Complainant that she had a miscarriage. She informed Wayne Neilon that she did not know at the time that she was pregnant. However, it is denied that the Complainant informed HR of the miscarriage.

The Respondent was informed at her probation meeting on 10/10/2023 that she was not performing at the standard needed for her to be a General Manager and that The Respondent would not be keeping the Complainant in the business any longer. On 10/10/2023 Wayne Neilon had a meeting with the Complainant, informing the Complainant that with all of the meetings that he has had with her, her Management Style and Support, which was put in place, that the Complainant was ignoring the support and not accepting that she needed help and that her performance was not getting any better. Unfortunately with regret he had to end her probation.

On 11/10/2023 an email was submitted to the Complainant referring to the meeting of the 10/10/2023 confirming probation would not be further extended due to work performance. The Complainant was also informed that she would receive her one weeks’ notice pay in lieu and her annual leave owed to her 17/10/2023 which was the dismissal date. The Contract of Employment reserves the right to terminate employment, given the appropriate notice set out in the legislation and furthermore that notice pay can be issued in lieu of service. The Statutory Notice required to be given to the Complainant given her length of service, is a period of 1 week.  It is submitted that even if the Complainant were correct, in her assertion that the required notice period was 4 weeks, this would bring the Complainant up to the 07/11/2023, which would mean that she would still be 1 day short, given the fact that the legislation provides that she must have “at least” 12 months continuous service under the Act.

Case law cited ADJ-00017826 Deputy General Manager v a Hotel, UDD 248 Boston Scientific v Paul Sheehan, UD591/1999Pedreschi -v- Lemons Beauty Shop,ADJ-00036709 Niamh Clinton v Masterchefs Hospitality Limited Masterchefs. UDD1955, Elms Furniture Ltd. v Ciara Leeson, UD591/1999, ADJ-00020604 A Hairdresser V A Hair & Beauty Salon.

EVIDENCE OF WAYNE NEILON:

Mr Neilon worked there from 2017 – 2025 and interviewed the complainant with Ms O’Dowd and hired her for the role of general manager and she had previously worked in a different bar as assistant manager.  The organisational structure is a Board of Directors with a Leadership Team and the complainant reported to him directly and they would have had regular contact.  She was trained including in PPA testing which gives you an understanding of people’s personality.  The €1,000 was given at Christmas as a goodwill gesture as she had a good attitude and was hard working.  There was a bonus in her contract but it did not have a set amount and it was performance based dependent on sales, customer experience, employee engagement and KPIs had to be achieved and there had to be profitability.  The respondent was very transparent about the bonus and wanted them to have all opportunities to succeed.  The decision of a bonus is given at the end of the financial year and this used to be December but it is now January and it could be given through salary or pension and the complainant was not told the bonus would be €10,000.  Support was given and there were people management issues which he was guiding her through and encouraged her to utilise available support.  There was a meeting on 09/03/2023 about her communication style and he advised her of similarities in her approach with his approach when he was younger  

Core competencies were set out in the contract with a score card and at a meeting on 16/05/2023 with another senior leader they we wanted her to be successful and felt she needed development and mentioned that Mr A would be useful as a peer manager to consult with as the general manager role is challenging and Mr A does it successfully but she felt that this was micro managing her.  She was told that the respondent was losing sales and she did not engage with Mr A to get the support and on 18/07/2023 an external coach was discussed as business had not improved and she had not engaged with Mr A and progress was not made.  He was happy to sign off on the external coach which was a significant cost to the company.  There were delays in setting this up and not much engagement by the complainant.  The complainant then said she got an offer from another employer on 15/08/2023 and he offered to assist her negotiating a salary and denied he said that they would be sorry to see her go. 

At the bi monthly meeting she would have heard the discussions about the financial performance and had heard about this at the previous meetings and that the respondent was not seeing improvement and she would have received minutes of these meetings.  On 25/09/2023 she was asked why she did not utilise supports and denied that she was micro managed.  The complainant contacted him on 06/10/2023 and there was a meeting on 10/10/2023 and he told her it was not an easy conversation.  He asked Ms O’Dowd to attend also, told her business was not performing, core competencies had been discussed and denied he said ‘stop it’ at the meeting when she got upset and denied that she was offered a reference if she resigned.  Just because she was not getting the results expected did not mean she was not working hard and it was ultimately his decision to terminate her employment and her employment was not terminated because of the miscarriage.  The general managers role is to drive performance of the business and there had been a pleasant environment, with no discrimination and he notified the CEO after the meeting ended. She did not mention her probation at the meeting and did not mention her miscarriage.

CROSS EXAMINATION OF WAYNE NEILON:

The complainant was hired as a general manager with a probation that could be extended and not exceed 11 months and that would mean not extend past 08/10/2023 and that her employment was terminated 11 months and 2 days after her start date.  It was his recollection that she was on probation, and she was not subject to disciplinary procedure.  He confirmed that if not on probation she would receive 1 months’ notice and that there was nothing about core competencies added to the submission and that he was not relying on key metrics as it was commercially sensitive information.  He was not relying on any document with regards to the bonus and that following the previous hearing date he went through his notes and was not relying on contemporaneous notes from meetings.  He confirmed that the complainant missed a 1:1 meeting in February 2023 because of a bereavement and the meeting in March was to discuss business performance and there was nothing referenced in that email about performance improvement plan or probation.  It was a failing not to document about probation and it was his job to say about probation and he could not dispute that she shared with her friends that she passed probation.  They offered coaching as they wanted to invest in her and coaching was offered at a significant cost.  He confirmed that the complainant told him about the job offer she received in August 2023 and did not use this to bargain with him.  He saw it appropriate to send her to the bar of the year award nomination and there was a mystery shopper score of 90% but such documents were not being submitted to the hearing.  The complainant also attended a manual handling course when she put herself forward and completed and the respondent did not look to recoup the money paid for her to attend and she also attended some other courses and was hardworking.  She regularly worked more than the contracted hours and she went on holidays in September 2023 and he wished her well.  He confirmed that he was not relying on any contemporaneous notes from any meetings that he alleged he had with the complainant regarding her performance.  He had told her there was an opportunity to get 20% bonus.

The complainant phoned him about the miscarriage and said she had been surprised to find out she was pregnant and came back on 05/10/2023 and was certified till 06/10/2023 and was not offered annual leave, sick leave or bereavement leave.  The complainant scheduled the meeting but if she had not scheduled it then he would have and she had not passed her probation but he could not recall if he had mentioned that to her.  The complainant was very upset and Ms O’Dowd came into the meeting at his request.  Her miscarriage did not enter his decision to dismiss her and they have always supported employees.  He confirmed that on 28/09/2023 he offered her support with her miscarriage and then 4 days after she returned on 10/10/2023 dismissed her and denied she was dismissed because of a miscarriage and they support pregnant employees and he accepted that he could not back some of the claims of poor performance it but would not accept the suggestion that he dismissed her because of the miscarriage.  The other assistant manager was given a PIP as it was thought his performance could be turned around and he did not flag with any one that he had gone over probation at time of termination.

EVIDENCE OF MS O’DOWD:

She was HR Manager and is Group Head of HR and there are 53% female and 47% male employees with 77% child-bearing age overall.  The complainant had the support of her manager as well as other managers and was offered 2 external coaches, availed of 1 and had the EAP support as well.  The respondent works hard to be an outstanding employer of the year.  The company does not state what bonus will be given as it depends on a review of performance and objectives.  Mr A was offered to her to support her and the external coach was offered and was female at the request of the employee.  The employee contacted Mr Neilon about her miscarriage and Ms O’Dowd did not have a conversation with the complainant about her D&C and did mention about her own personal experience with a miscarriage.  She spoke to her on 06/10/2023 about what happened and did not speak to her before that and when she spoke to her she told her she was glad that she was back and never said that this miscarriage would make the complainant want a baby and the complainant did not say she was still passing blood.  The complainant did ask about a guy in security that there had been difficulties with and was told not to be listening to people. 

On 10/10/2023 Ms O’Dowd arrived at the meeting and the complainant and Mr Neilon were at a table and he said he was not extending probation and talked about the complainant’s performance.  The complainant said she was very disappointed and did not hear Mr Neilon say ‘stop it’ at the meeting.  Ms O’Dowd said she knew that the complainant was having difficulties with her performance and nothing was said about miscarriage and could not recall if anything was said by the complainant about probation.  The complainant was requested to leave in laptop and keys and she said none of the emails the complainant referenced in her evidence had been received by her despite a full review of her email box and she did not receive the 3rd email the complainant said she sent despite a full review by IT of her mailbox.  Mr Neilon had come to Ms O’Dowd in July/August about the complainant’s performance and he made the final decision to terminate her employment.  It was her understanding that she got on well with the complainant but there had been an incident with a security person and a friend of the complainant’s and the complainant had felt the security person was in the wrong.  It was her understanding that the complainant had attended 2 meetings with the external coach and did not attend the third one and it was Ms O’Dowd who wrote the letter of dismissal.  Mr Neilon did not get any advice from her on how to conduct the meeting apart from saying to do the meeting in a private room and did not know he had not extended probation.  The meeting of 10/10/2023 was about underperformance and miscarriage was not discussed.  Mr Neilon said on 08/10/2023 he was going to speak with her on 10/10/2023 and at that time Ms O’Dowd did not know about probation.

CROSS EXAMINATION OF MS JACKIE O’DOWD:

Ms O’Dowd is 14 years in the role and has 20 years HR experience and is qualified to Masters level.  Core competencies come from the manager and the company do not apply disciplinary procedure if someone is on probation and the contract does not say that in the contract and there was no disciplinary procedure applied to the complainant.  In March 2023 she congratulated the complainant and her team and did not know the results of the mystery shopper.  She did not attend any performance meetings with the complainant the complainant was not put on a Performance Improvement Plan and another employee was on a Performance Improvement Plan who later became the General Manager.  It may have been a mistake not to have performance meetings with her and there were no minutes of any performance meetings.  There was no document about probation and there should have been.  The decision to provide coaching was to invest in the complainant.  It was believed she was not taking the coaching seriously and this was the reason for dismissal and Mr Neilan felt she had no interest.  She did not know it was the complainant who had set up the meeting of 10/10/2023 and all she knew was that Mr Neilon was having a meeting with her, thought she was on probation, knew what he was going to say and did not advise him to pause the meeting.  Ms O’Dowd did not attend the meeting at the start and the EAP was offered.  The complainant was not offered additional leave, was not asked to fill in a fit to return to work form or provide a cert when she returned from the miscarriage and was not told that the complainant was still bleeding.  The meeting with her was about her performance and was not about a miscarriage. She was aware that they were going to end her employment end of September 2023.  Ms O’Dowd did not know the results of the mystery shopper, was aware the complainant ran a charity event and this had been supported by the company and she had also attended the bar of the year for the company and also staff appreciation event.  Ms O’Dowd did not attend any meetings about the performance of the complainant and she had never been put on a PIP unlike another manager who became the general manager.  Providing a coach was an investment.  Ms O’Dowd did not know that the complainant had arranged the meeting of 10/10/2023 and she did not advise the complainant on any rights for leave at that meeting and the complainant did not appear to want to talk about her miscarriage.  The complainant did not say that she was still passing blood when she returned. Ms O’Dowd felt sorry for the experience of the complainant of having a miscarriage and that the complainant did not want to be treated any different.

She spoke to the complainant on 06/10/2023 about the miscarriage and the complainant made it very clear that she did not want to talk about it.  There was no mention of underperformance in the letter of 10/10/23, no mention of the miscarriage, no mention of targets and there is no document that shows probation was extended and this should have been put in writing.  She confirmed that it could not be reconciled that the contract said probation would not be extended beyond 08/10/23 and that probation was extended and there was no appeal of the decision to dismiss.  The complainant was dismissed 9 days after her miscarriage and that it was based on performance as they needed a strong leader.

The complainant submits that her employment was terminated, that the dismissal was owing to matters related to pregnancy as the dismissal arose when she returned to work following a miscarriage.  The respondents submits that the complainant has less than one year service, was on probation at the time, was not pregnant at the time of dismissal, did not know she was pregnant when she had the miscarriage, that the dismissal arose from poor performance and the WRC does not have jurisdiction to hear the complaint.

s1 sets out that “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

It is further set out that

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

s3provides that for Dismissal during probation or training.

3.—(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—

(a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or

(b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.

s6 sets out that

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall 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 subsection (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:

… (f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith

Preliminary Issues:

The respondent raised a number of preliminary issues which required on occasions separate legal submissions which parties were given an opportunity to review and respond to.

Probation:

The respondent submits that the complainant was on probation at the time of dismissal and the complainant submits that she had passed probation, notwithstanding that her employment ended 11 months and 2 days after her employment commenced.  It was not in dispute that the complainant commenced employment on 08/11/2022 and that the contract provides for probation of six months which may be extended and “will not in any case exceed 11 months”.  It was not in dispute that the complainant was told at the meeting of 10/10/2023 and in the letter that followed that “your probation would not be further extended due to work performance”.  I note the complainant’s credible evidence that she had passed probation and informed some colleagues of this whereas Mr Neihan’s evidence was less credible as he had no recollection as to the specifics of any alleged extension of probation and nothing documented regarding any such possible extension of probation.  It was Ms O’Dowd’s evidence that she believed the complainant was still on probation and accepted in her evidence that THIS did not reconcile with the terms of the contract which did not allow for an extension of probation past 11 months. In all the circumstances I prefer the evidence of the complainant and in any event the contract does not provide for probation to be extended past 11 months and it was not disputed her employment was terminated 11 months and 2 days after her employment commenced.  I find, therefore, that the complainant could not have been on probation at the time of dismissal.

Pregnancy… or any matters connected therewith:

The respondent submits that the complainant had less than one year service, does not therefore have the requisite service under the Act, was not pregnant at the time of the dismissal, did not know she was pregnant and therefore s6(2)(f) does not apply in such circumstances and the dismissal did not arise wholly or mainly from matters connected with pregnancy.  The complainant submits that the complainant had been pregnant, suffered a miscarriage and therefore this was a matter connected with pregnancy as defined under s6(2)(f).  I note it was not in dispute that the complainant had been pregnant, did not know she was pregnant until she suffered a miscarriage and informed the respondent on 29/09/2023. In Mary Brown v Rentokil Initial UK Ltd (formerly Rentokil Limited C-394/960 it was set out that:

“The situation of a pregnant worker who is unfit for work as a result of disorders associated with her pregnancy cannot be considered to be the same as that of a male worker who is ill and absent through incapacity for work for the same length of time.

 In Western Brand Group Ltd V Aneta Petrova(UDD1819), the Labour Court awarded compensation following a miscarriage after which the complainant was dismissed.  I find in all the circumstances that as it is not in dispute that a miscarriage arises from pregnancy, it follows that a miscarriage may be considered as a matter connected with pregnancy.

Burden of proof?

The respondent submits without prejudice to their claim that the complainant was dismissed owing to poor performance, and that it is for the complainant to determine that the dismissal was owing to matters connected with her pregnancy.  The complainant submits that the burden of proof rests with the respondent as set out in s6(1) that the dismissal of an employee shall be deemed,… to be an unfair dismissal.  In Pedreschi -v- Lemons Beauty shop UD591/1999 it sets out that 

“that in order to seek protection of the Unfair Dismissals Act, as amended, the claimant herself must bear the burden of proof in showing herself to be entitled to this protection. This she does by showing that her dismissal was on the grounds of pregnancy.” 

This is further set out in Elms Furniture Ltd. v Ciara Leeson UDD1955, where it was held that

“An employee who is dismissed by reason, inter alia, of her pregnancy is exempted from the requirement to have one year’s continuous service with their employer in order to qualify under the Act. However, the burden of proving that her dismissal is ‘wholly or mainly’ as a result of her pregnancy rests on the Complainant in such a case under the Act.”. 

The complainant referenced A Hairdresser V A Hair & Beauty SalonADJ-00020604 but in that said case the matter complainant had already 12 months service.  I find in all the circumstances that it is for the complainant to establish that on the balance of probabilities the dismissal was for matters connected with  pregnancy before the WRC can assume jurisdiction as the complainant has less than 12 months service.

Substantive Issue:

It was not in dispute that the complainant commenced employment on 08/11/2022, was advised on 10/10/2023 that her employment was terminated, was given one weeks payment in lieu of notice and termination date was 17/10/2023. 

It was not in dispute that the respondent was advised on 29/09/2023 that the complainant suffered a miscarriage.  Albeit deemed not fit to return to work until 06/10/2023 she returned on 05/10/2023.  It was not in dispute that it was the complainant who scheduled the meeting for 10/10/2023 and it was at this meeting that her unemployment was terminated and she was not put on notice in advance as to the intent of the respondent, did not have anyone present with her and the decision was made by Mr Neilon in advance of that meeting without any opportunity offered for the complainant to appeal this decision.  

I have already determined the complainant was not on probation at the time of dismissal and I note the conflict in evidence as to whether there were performance issues.  It was not in dispute that the complainant had received a bonus at Christmas time suggesting no performance issues up to this point.  It would appear that the complainant did require guidance and support in this new role but no documentation was provided which pointed towards any significant concerns raised about the complainant’s performance.  I find Mr Neilon’s and Ms O’Dowd’s evidence lacked credibility that the respondent chose the expense of an external coach instead of a performance improvement plan for alleged performance issues with the complainant.  This is particularly noted against a performance improvement plan utilised by the respondent for an assistant manager working alongside the complainant.  I note that when the complainant advised that she had the possibility of another job Mr Neilon did not use this as an opportunity to communicate to the complainant if he had concerns about her performance which a reasonable person might have been expected to do. I further note that it was the complainant who arranged the meeting of 10/10/2023 and not Mr Neilon.  The respondent cited commercial sensitivities as to the reason why they would not provide minutes of meetings where the complainant’s poor performance was allegedly outlined but there also was no evidence that such minutes had been provided to the complainant.  I further note that the complainant was allowed the opportunity to engage with a training programme on manual handling at a cost of approximately €2,000 for the respondent which does not suggest that they were considering termination of her employment.  

Much was made at the hearing regarding whether the complainant had sent an email to Ms O’Dowd on 16/10/203 12:12pm but in any event there was no process for appeal in the letter of termination.  In Herco Investments Ltd v O’Sullivan EDD 0316/2003 albeit a claim under the Equality Act the Court highlighted the importance of documentary records regarding alleged poor performance and Bank of Ireland v O’Reilly [2015] IEHC 241 highlights the onus on an employer to justify dismissal.  In Maxwell v English Language Institute (UD 580 P17/1989) it was determined that the reason for dismissal was pregnancy related as it had been claimed by the employer that the employee had been unsatisfactory in her work, but had received no warnings.

Article 33(2) of the Charter of Fundamental Rights of the European Union outlines

“everyone shall have the right to protection from dismissal for a reason connected with maternity”

and while there are exceptions that arise recognised in Art 10 of Council Directive 92/85/EEC which expressly states that pregnant employees can be dismissed in exceptional cases that are

“not connected with their condition”.

I find that in all the circumstances that it lacks credibility that the complainant’s employment was terminated for poor performance when she passed probation, was not on alert that her current job was not secure after discussing a potential job offer, investment was made by the respondent with an external coach and did not place the complainant on any Performance Improvement Plan (PIP) if there were performance issues but did place another manager on a PIP.  I further find that I can find no other reason as to why the complainant’s employment was terminated in all the circumstances other than because of matters connected with pregnancy considering the close proximity of 5 days from the complainant’s return to work after a miscarriage and dismissal, at a meeting the complainant scheduled to discuss reducing her hours of work.  I also find her employment was terminated without any expected procedures, the absence of the laws of natural justice including the right of reply, right to have someone present at this dismissal meeting and right to respond. 

I find that the burden of proof was with the complainant to determine that her dismissal was owing to matters connected with pregnancy and the complainant has met that proof and that the respondent has not proven there were exceptional circumstances and I find that the dismissal in all the circumstances was unfair.

Having heard all the evidence and submissions I find that reinstatement or reengagement are not appropriate forms of redress, and that an award of compensation is more appropriate.  The complainant gave evidence of efforts to mitigate her loss. 

Mitigation:

The Act sets out that:

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

UDD2329 Aztec Entertainment Ltd Bernard Robinson highlights that awards should be “just and equitable in all the circumstances” and it isalso necessary for the complainant to make efforts to mitigate losses that are “reasonable, adequate and sufficient” (Sheehan v Continental Administration Co Ltd. 858/19990) and I also note from Revenue Guidelines s192A TCA 1997 the treatment of any such awards.  I do not find that the bonus claimed of €10,000 can be considered regular bonus as set out under regulation (4) SI 287/1977 and the contract clearly sets out that it is at the discretion of the respondent.

From the end of her employment in October 2023 until March 2024 the complainant did not secure employment and provided some but very limited efforts to mitigate her loss during this time.  The complainant’s salary was €60,000 gross and she secured a salary in March 2024 of €52,000 gross and then left this employment in June 2024.  I note her evidence that part of the reason for leaving was staff from the respondent sometimes frequented this bar and she found that difficult to deal with.  She then took up employment with a salary of €32,000 gross almost 50% less than what she had with the respondent and did not provide any evidence thereafter of efforts to mitigate this continuing loss arising.  

I further note that it is not lost on me that the complainant’s employment was terminated arising from matters connected with pregnancy and therein the respondent failed to provide the complainant with her right to have protection from dismissal for a reason connected with maternity.  Having considered all the circumstances of the case I find that the dismissal was unfair and award the complainant €25,000 gross which I find just and equitable.

Having considered all the circumstances of the case I find that the dismissal was unfair and award the complainant €25,000 gross which I find just and equitable.

Pregnancy, miscarriage, less than one year, probation, unfair dismissal