Case Number: ADJ-00011063. Workplace Relations Commission

• Docket Number: ADJ-00011063
• Hearing Date: 21 May 2018
• Date: 13 June 2018
• Court: Workplace Relations Commission
• Parties: An Administrator V A Software Company.
• Respondent: A software company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011063

Parties:

	Complainant	Respondent
Anonymised Parties	An administrator	A software company

Complaint:

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-00014814-001	6/Oct/2017

Date of Adjudication Hearing: 21/May/2018

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

In accordance with Section 8 of the Unfair Dismissals Act 1977, this complaint was assigned to me by the Director General. I conducted a hearing on May 21st 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.

The complainant was represented by Ms Ann Conan of the Citizens Information Centre. The respondent was represented by Ms Lisa Conroy of Peninsula Business Services, accompanied by Mr Brian Dolan. The Chief Financial Officer and the Human Resources Manager gave evidence for the respondent.

Background:

The respondent is engaged in the marketing and selling of a specific IT software system and employs just under 50 people in Ireland. The complainant joined the company on July 3rd 2017 in the role of “Support Admin Co-ordinator” on an annual salary of €30,000. She was dismissed six weeks later. The respondent claims that the complainant’s role was made redundant but she complains that she was dismissed because one week after she joined the company, she informed her manager that she was pregnant.

Preliminary Issue:

Protection under the Unfair Dismissals Act Section 6 of the Unfair Dismissals Act 1977 – 2015 (“the Act”), provides as follows: “(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 sub-section 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: (a) – (e) are not relevant for this case. (f) …the employee’s pregnancy, attendance at ante natal classes, giving birth or breastfeeding or any matter concerned therewith…” Section 6 of the Act therefore, clearly provides that the dismissal of an employee for reasons related to pregnancy or matters related to pregnancy “shall be deemed” to be unfair. With a small few exceptions, section 2(1)(a) of the Act provides that an employee who, at the date of the termination of their employment, has less than one year’s continuous service, may not bring a claim of unfair dismissal. One exception is the category of employees described at (f) above, and one of the effects of the insertion of sub-section (2A) in section 6, is to offer the protection of the Unfair Dismissals Act to an employee who claims that their dismissal was due to pregnancy, even if they have less than one year’s service. The effect of the legislation set out above is that a dismissal that relates wholly or mainly to pregnancy may be an unfair dismissal, unless there were other substantial reasons and, that an employee in these circumstances with less than one year’s service may claim protection under the Act. The issue for consideration as a preliminary matter is if the complainant in this case is entitled to claim that she is entitled to such protection. I considered the written submissions of both parties prior to the hearing of this complaint and it is my view that the complainant has established the basic facts upon which it could be presumed that her employment was terminated due to her pregnancy. These facts are, that she informed her employer that she was pregnant, and shortly afterwards, she was dismissed. With the complainant having established a “prima facie” case that her dismissal was related to her pregnancy, the burden of proof is on the respondent to prove otherwise. This position was accepted at the commencement of the hearing and, accepting the burden of proof, Ms Conroy, for the respondent, argued in the first instance that the complainant was dismissed due to redundancy.

Summary of Respondent’s Case:

Notification of Pregnancy The complainant was not the first choice to fill the role of Support Admin Co-ordinator which became vacant in February 2017 due to the resignation of the incumbent. When the successful candidate left the job after two weeks, the complainant was interviewed a second time and she commenced in the role on July 3rd 2017. When she informed her line manager that she was pregnant, the respondent’s submission notes that her manager congratulated her and arranged a meeting with the HR Manager on July 13th. The Requirement for Cost-Cutting Measures The respondent denies the allegation of unfair dismissal and submits that the complainant was made redundant for cost-cutting reasons. The minutes of the company’s operational board meeting on July 20th were produced in evidence at which the directors discussed the need to save €100,000 during the remainder of 2017. Another document shows that overheads were reduced from €469,000 in June 2017 to €378,500 in December of that year, a difference of €90,500 across the seven months to the year-end. The respondent’s witnesses said that the complainant’s role was made redundant when other employees were allocated the tasks associated with the Support Admin Co-ordinator role and the job has not been filled since the complainant was let go. Evidence of the Chief Financial Officer...