Case Number: ADJ-00000182. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000182
Date23 February 2016
PartiesAn Agency Worker v A Recruitment Agency
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000182

Complaint for Resolution:

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-00000251-001

15/10/2015

Date of Adjudication Hearing: 19/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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..

Complainant’s Submission and Presentation:

The complainant had been assigned by the respondent, a recruitment and employment agency to work with a client company based at Dublin Airport as a check in agent. Her hourly rate was €10.40.

Her shift pattern involved four late shifts, followed by two days off, then four early shifts, with two days off. The early shifts began at 03.00.

She says that she advised her supervisor that she was seven weeks pregnant.

She developed bad morning sickness in the early hours so struggled to get up and go to work. She submitted medical certificates and was put on illness benefit for pregnancy related illness. She informed her immediate work colleagues and also the recruitment agency.

She then asked the recruitment agency whether she could do fewer early shifts and replace these with more late shifts as she could manage this.

On October 12th 2015 her employer sent her an email stating that it was terminating her employment because she could not meet the requirements of the client’s shift pattern.

In her direct evidence she confirmed the narrative set out above and added that she was invited to attend a disciplinary hearing to answer complaints that she was making mistakes at the check in and also in relation to her high level of absenteeism.

This did not proceed because of her absence on certified sick leave.

The complainant said she posted medical certificates to the company’s registered business address on July 5th, August 26th and September 9th all of which stated that she was suffering from a pregnancy related illness.

Respondent’s Submission and Presentation:

The respondent complained that it had not been given the opportunity to resolve matters at mediation as it felt that there had been misunderstandings and some breakdown in communication which it could have addressed there.

GD, a director of the respondent company gave evidence that that the letter which the complainant saw as terminating her employment did not in fact do so. Its intention, in recognition of the problem with the early shift was to end the assignment to that particular client only. It claimed that it was not intended to terminate her contract altogether. She said it was the company’s intention that, once well enough to do so, she would be returning to her position at the airport.

The company also said that it did not receive any medical certificates from the complainant and that while it was aware that she had been ill it did not know that her illness was pregnancy related or that she was pregnant.

GD said it only posted the complainant’s P45 and outstanding holiday pay to her at her request.

Findings and Conclusions

I have reviewed all the oral and written evidence which was laid before me prior to and in the course of the hearing into the matter.

There are two key issues to be decided here.

The first concerns the state of the company’s knowledge of the complainant’s condition and its claimed ignorance of the fact that she was pregnant.

The complainant says that she told her supervisor that she was pregnant and I accept her evidence in this regard. The obligation then fell on her supervisor to ensure that this was known to the relevant section of the company. Certain important obligations fall on employers to assess the general work environment and to carry out an assessment of its suitability for pregnant employees from a health and safety point of view. So the failure to do so represents a double failure on the part of the company.

Its employees in supervisory positions ought to know what obligations fall on them in this regard.

While the Respondent’s Contract of Employment (at point 4 therein) requires the employee to note that it is in the nature of the temporary work that there may be periods when no suitable work is available particular, very different principles...

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