Case Number: DEC-E2012-036- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-036- Full Case Report
• Date: 01 March 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL EMPLOYMENT EQUALITY ACTS 1998-2008 Decision DEC - E2012-036 PARTIES Dagmara Ziablicka
Represented by Kate Kennedy B.L. instructed by DM O'Connor & Co., Solicitors) -V- Christine Connolly t/a Small World Crèche
(represented by Peninsula Business Services (Ireland) Ltd.) File Reference: EE/2009/389
Date of Issue: 28/03/2012

Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, Section 6(2)(h) - Race, Section 8 conditions of employment, disciplinary measures, pregnancy and discriminatory dismissal.

1. Dispute

1.1 This dispute concerns a claim by the above named complainant that she was discriminated against by the above named respondent on the gender and race grounds, in terms of Sections 6(1), 6(2)(a) & (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to her conditions of employment and dismissal.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 9th June 2009 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 3rd October 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 18th December 2009 and the 20th October 2011 and from the respondent on the 22nd February 2011. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 28th October 2011. A final hearing took place on the 9th December 2011.

3. Summary of the Cases

3.1 The complainant is a Polish national and is a qualified childcare worker. She was recruited by the respondent following an interview. She was employed from 8th September 2008 until from until the May 2009 when her employment terminated. The complainant worked as a childcare worker in the respondent's crèche looking after children between the ages of two and two and a half. She worked one of three shifts 7:30am to 4:30pm, 8:30am to 5:30pm or 9:30 am to 6:30pm. The complainant said that she loved her job and had no trouble carrying out her duties and she believed she was getting on very well in her position. She said that she was unhappy about the fact that she was never issued with a contract of employment and this was her only concern up until February 2009. In or around the 10th February she said that she informed her manager that she was pregnant. She said that her manager FM told her to keep her leave so that she could take it during the 7th month of her pregnancy because she would no longer be able to work in the crèche at that stage of her pregnancy. The complainant said that she was not agreeable to this because she wanted to travel to Poland during the time it was safe to travel during pregnancy to visit her family and her doctor.

3.2 On the 4th of March 2009, the complainant said that she was advised by the respondent that she was being suspended from work with immediate effect. She was told that there had been an incident a week earlier where it was alleged that she had pushed a child into another classroom in an inappropriate manner. It was not made clear to her what the suspension was about. She said that the only matter it could relate to was an incident which occurred on the 24th February 2009 concerning a child who came into her classroom from the pre-Montessori group. On the day in question she had an appointment for a scan that afternoon so she had to finish work early. FM had told her she would only be paid for the 2 hours for her ante-natal clinic. In order to make up the extra half hour it would take her to travel to the hospital, she started work at 7:30am and worked through her morning break and cut her lunch break short so that she would get paid for the full day. The classroom where the complainant worked was divided in two with a class each side of the fence the play group on her side and the pre-Montessori group on the other. On the 24th of February there were 8 children in the complainant's group on her return from lunch some of the children were asleep and there was an extra child in the group who was disturbing the other children. The child belonged to the other group and she asked the teachers in that group to take her back but they offered her no assistance to take the child back to their group. The complainant said that she took the child by the hands and led her back to the other group. The child was reluctant to go and attempted to sit on the floor and she was crying by the time she got her back to the other group. She said that because of her pregnancy she could not lift the child and she denies that statement made by one of the teachers that "she lifted one of the children under her arms and plonked her on a chair." The complainant said that this could not have happened because there were risks attached to her pregnancy due to another medical problem she had. The complainant said that she did not bring the child into her class as suggested by the respondent. The complainant accepts she was asked by FM why the child was crying and she explained what happened and she believed that was the end of the matter and FM did not tell her that she was reporting the matter to the owner of the crèche. She denies that she shouted at the child or that she treated the child in an inappropriate manner.

3.3 On the 26th February 2009 the complainant said that when the rota was put up she noticed that she was allocated the two harder shifts for the period. She said that up to this everybody did a week of starting at 7:30 and the next week at 8:30 and the following week at 9:30. The complainant said that the 8:30 shift was the easier shift because the other two shifts involved duties including cleaning duties connected with the opening and closing of the crèche. The complainant said that when she raised the roster with FM she said to her that she was lucky she was not working in a named fast food chain. She believes that this was said to her because she was Polish.

3.4 The complainant stated that she was summarily suspended on the 4th of March 2009 she was escorted off the premises by FM and she was not allowed to say good bye to the children. She said that when she went home she was very upset and she decided to seek advice. On that same day she wrote to the management of the crèche seeking in writing the reason for her suspension from work and enquiring what was going to happen next in the process. She waited a few days for a reply and then she got an undated letter informing her that she was suspended from duty on full pay pending an investigation of allegations that she had physically and verbally abused a child. The complainant said that she heard nothing further from the respondent and she wrote to her again on the 14th of March 2009 stating that she was available to return to work but if the allegations proceeded further she wanted the details of the allegations copies of witness statements and a date for the hearing. She also pointed out that she wished to refute all the allegations. The complainant said that she waited a further 3 weeks for a response and then she received an undated letter which she said that she received on the 6th of April 2009 requesting her to attend an investigation meeting the next day, the 7th of April, and enclosing copies of statements made by staff about the allegations against her. Due to the short notice the complainant's solicitor requested a postponement of the meeting and it was rescheduled for the 14th of April 2009. The complainant attended the investigation hearing accompanied by her husband. The meeting was chaired by the owner of the crèche Ms. C and the manager of the respondent's other crèche Ms. K took the notes. The complainant said that she denied that she had ever physically or verbally abused the child in question. It was put to her that she had taken the child into her class from the pre- Montessori group and she denied this. She said that she had too many children in her group already and the recommended ratio was exceeded and she removed the child because she was disturbing the other children. The allegations contained in the statement of the witness stated the incident happened on the 26th of February and the complainant told the enquiry that she was sure the incident happened on the 24th of February the day she was going to the anti natal clinic and that the incident about the roster happened on the 26th of February. The complainant said at the investigation that she was suspended for 6 weeks before she was clearly informed of the allegations made against her. She said at the investigation that there were inconsistencies in the witness statements including the manager's statement which was unsigned. The complainant also wanted to know if the incident was considered so serious by the manager why did they wait for eight days before she was suspended. The complainant also wanted to know why the incident had not been recorded in the daily book.

3.5 The investigation hearing was adjourned and the complainant got a letter dated the 15th...