Case Number: ADJ-00000026. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000026
Date13 January 2020
PartiesNATASHA NOWACKI v LAURENCE WALL, TOMAS O'SHEA and JOSEPH KAVANAGH, Veterinary Partnership t/a Moyne Veterinary Clinic
Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant, Ms. Natasha Nowacki, is a qualified vet who commenced employment in 2004 with the respondent, a Veterinary Partnership which has a practice in Co. Wexford. Ms. Nowacki alleges that she was discriminated against on the grounds of gender and family status by the respondent contrary to the provisions of the Employment Equality Acts, 1998 - 2015. There is a further complaint of harassment under the Acts. The complainant went on maternity leave in 2007 returning to work in August of that year. In October 2014 Ms. Nowacki again went on maternity leave and returned to work in April 2015. The complainant alleges that she was subjected to discrimination during her pregnancy, that on her return to work she was not provided with the same terms and conditions as she enjoyed prior to her maternity leave and that her workload was reduced and her income adversely affected. The complaint was lodged with the WRC on 4 October 2015.

Summary of Complainant’s Case:

During her initial pregnancy in 2007 the complainant had to cease certain duties such as lambing and working nights because of the possible risk to her health.

In Spring 2014 the complainant advised the respondent that she was pregnant. Prior to the complainant’s maternity leave the respondent recruited two new vets. One of the partners also passed a remark which implied an expectation on the respondent’s part that the complainant would not be returning to work.

After the birth of her twins one of the partners asked Ms. Nowacki if she was going to have more children. Upon her return to work the complainant was advised that there was not enough work for all the vets in the practice.

The complainant’s allocation of work was reduced after her return to work with a consequent reduction in her commission earnings.

Summary of Respondent’s Case:

The respondent rejects the allegation that the complainant’s terms and conditions were altered so as to make them less favourable. The commission rates were unaltered.

The only exclusion from duties that occurred in relation to the complainant were those excluded on medical advice or those which the complainant herself chose not to do.

The workload in the practice has reduced due to less testing as a result of the eradication of brucellosis and the removal by the Dept. of Agriculture of the requirement for pre-movement testing in September 2015.

The male vet was not recruited to provide maternity cover but to cover for an injury to one of the partners. Due to the illness and subsequent unfortunate death of his wife this partner has been unable to return to full-time duties and consequently that vet was retained in employment.

Findings and Conclusions:

This complaint was originally lodged with the WRC on 4 October 2015. Hearings in relation to the complaint were held on 20 January 2016 and 1 March 2016. A decision was issued on 18 April 2016 which dealt with the employment status of the complainant. Ms. Nowacki appealed this decision to the Labour Court and the Court issued Determination No. EDA198 on 4 April 2019 which found that the complainant was encompassed by the scope of the Employment Equality Acts, 1998-2015, at all times material to her complaint. The Court referred the matter back to the WRC pursuant to Section 84(d) of the Acts for investigation and determination. A further hearing in this regard took place on 20 November 2019.

In 2004 Ms. Nowacki, a Veterinary Surgeon, responded to an advertisement placed in a veterinary magazine by the respondent and was subsequently commenced employment with zthe practice which is located in a rural town. The practice is operated as a partnership and the three partners are Laurence Wall, Thomas O’Shea and Joseph Kavanagh. In 2005 discussions took place between the parties and it was agreed that Ms. Nowacki would be paid on the basis of commission and that this commission would be a percentage of the fee charged to the customer by the practice. The complainant’s hours of work included certain liabilities as regards weekend and night working.

In March 2007 the complainant went on maternity leave returning to work in August 2007. Prior to going on this leave the complainant would have avoided lambing sheep and working nights on medical advice and also would not have been able to do large animal work for a number of weeks. In Spring 2014 the complainant again became pregnant and advised the respondent accordingly. The complainant also advised that she could not be involved in lambing. A vet (Ms. Z ) was recruited on a full-time basis to replace a part-time vet during the complainant’s pregnancy. Another vet (Mr. X) was employed at the commencement of the complainant’s maternity leave. Mr. X was related to one of the partners. The complainant commenced her maternity leave in October 2014 and gave birth to twins. The complainant returned to work in April 2015. Prior to that return to work there was a meeting between the complainant and the respondent. The complainant requested that she would work a four-day week apart from the busy periods and this was agreed in principle. The vet, Mr X, was retained in employment.

The complainant claims that subsequent to her return to work the amount of work allocated to her reduced significantly and that consequently there was a reduction in her income. The complainant asserts that the job she returned to did not provide the same terms and conditions of employment as she had enjoyed prior to her going on maternity leave.

Section 6 of the Employment Equality Act, 1998, states:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which –

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned…

The discriminatory grounds are defined in Section 6(2) and include –

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(c)that one has family status and the other does not (in this Act referred to as “the family status ground”)

Section 2(1) of the Act defines “family status” thus:

“family status” means responsibility –

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of...

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