Case Number: DEC-E2016-047. Workplace Relations Commission

Judgment Date01 March 2016
CourtWorkplace Relations Commission
Docket NumberDEC-E2016-047
PartiesMs Julia Polonski -V- Cityjet Ltd
EMPLOYMENT EQUALITY ACTS 1998-2015 Decision DEC – E2016 – 047 PARTIES Ms Julia Polonski (represented by Sarah Lea, B.L, instructed by Brophy Solicitors) and Cityjet Ltd. (represented by Paul Brady B.L., instructed directly by the respondent) File Reference: et-150410-ee-15 Date of Issue: 9th March 2016

Keywords: gender – pregnancy – outside S. 77(5) time limits – no jurisdiction – family status – constructive dismissal, either discriminatory or victimisatory – An Employer v. A Worker (Mr O)(No. 2) [EED0410] – when should a worker be allowed to rescind a resignation - Charles Shinkwin v. Donna Millett[EED044] and Kwik-Fit (GB) Ltd v. Mr G Lineham[1991 UKEAT 250_91_2410] – limits of duty of employers to go behind reasons for a resignation.

1. Claim

1.1. The case concerns a claim by Ms Julia Polonski that Cityjet Ltd discriminated against her on the ground of family status contrary to Section 6(2)(c) of the Employment Equality Acts 1998 to 2011, in terms of discriminatory dismissal and other discriminatory conduct. The complainant also complains of victimisation contrary to S. 74(2) of the Acts.

1.2. The complainant, through her solicitor, referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 3 November 2014. A submission was received from the complainant on 19 August 2015. A submission was received from the respondent on 12 October 2015. On 2 December 2015, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 4 March 2016.

2. Summary of the Complainant’s Written Submission

2.1. The complainant submits that she worked for the respondent as cabin crew from 17 October 2007, initially on a fixed term contract, then, from April 2008, on a permanent contract.

2.2. In February 2013, the complainant was working in an accounts role, following medical advice in connection with her pregnancy. She commenced her maternity leave on 20 April 2013. She states that by letter dated 20 August 2013, she was informed by the respondent’s HR department that her maternity leave would cease on 19 February 2014 or on 12 June 2014 if she availed of additional maternity leave. The letter also stated that failure to give the required notice or failure to return to work on the agreed date would be an indication that the complainant did not intend to return to her job. The complainant submits that this show that the respondent clearly envisaged that she would not return to work.

2.3. The complainant further submits that due to difficulties with her line checker, Ms. K., regarding her return to work and her terms and conditions of employment, she had no option but to resign her employment. She was particularly concerned that the number of overnights required of her. She states that this could be up to six days in a row, which was different from her previous terms and conditions and caused her difficulty as the mother of two young children.

2.4. The complainant states that the respondent did not provide any assurances or accommodations to her and was not willing to countenance any flexibility. According to the complainant, the respondent also failed to acknowledge that there was an alteration in the complainant’s terms and conditions of employment as cabin crew, and that these were to her detriment as a working mother. The complainant resigned her employment on 9 May 2014. She then sought to retract her resignation on 23 May 2014, but the respondent did not accept this.

2.5. The complainant submits that this amounts to discrimination on the ground of gender pursuant to the provisions of the Employment Equality Acts, and in particular, that her resignation ought to have been void pursuant to S. 23 of the Maternity Protection Acts. In the alternative, she submits that the respondent’s refusal to let her retract her resignation amounts to victimisation within the meaning of the Acts.

3. Summary of the Respondent’s Written Submission

3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the letter in question is a form letter which goes out to all employees on maternity leave. It further denies that the complainant’s roster and terms and conditions of employment were ever altered beyond normal business exigencies. With regard to the complainant’s resignation, it insists that the complainant was contacted twice after her resignation, which would have given her an opportunity to retract same. It submits that by the time the complainant sought to retract her resignation, too much time had elapsed to make it practicable to reverse the process.

3.2. The respondent further notes that by the complainant’s own evidence, she never raised the issues which she said led to her constructive dismissal, with the respondent. In particular, it states that it was never informed by the complainant that she believed her terms and conditions of employment had been altered in an unacceptable manner.

3.3. With regard to the complainant’s argument pursuant S. 23 of the Maternity Protection Acts, counsel for the respondent requested of me in a supplemental submission that I should stay the proceedings and refer this matter to the High Court for clarification.

4. Conclusions of the Equality Officer

4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.

4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.

4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

4.4. First, the case on hand has been brought under the Employment Equality Acts 1998-2011, and I therefore have no jurisdiction to examine the facts in light of the provisions of the Maternity Protection Acts, or case law pertaining to them. Counsel’s application is therefore moot.


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT