Case Number: DEC-E2016-040. Workplace Relations Commission

• Docket Number: DEC-E2016-040
• Date: 01 March 2016
• Court: Workplace Relations Commission
• Parties: Druciarek Wojcica -v- Allied Logistics Ltd t/a Allied Foods.

Adjudication Officer/Equality Officer’s Decision No: DEC-E/2016/040 Parties Druciarek Wojcica (Represented by Mr. William Kelly BL Instructed by Hickey and Company- Solicitors) -v- Allied Logistics Ltd t/a Allied Foods. (Represented by IBEC) File No: EE/2012/359 Date of issue: 3 March, 2016

Employment Equality Acts, 1998-2011 – Sections 6 & 8 –discriminatory treatment – dismissal – gender- family status- maternity leave – fixed term contract

1. DISPUTE

This dispute involves a claim by Ms. Ewelina Druciarek Wojcica (“the complainant”) that she was (i) discriminated against by Allied Logistics Ltd (“the respondent”) on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts as regards access to employment and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts.

2. BACKGROUND

2.1 The complainant was employed by the respondent as an Office Administrator under a series of fixed-term contracts between May, 2010 and April, 2012. The complainant contends that the respondent’s decision not to renew her employment when her fourth fixed-term contract expired in April, 2012 constitutes discrimination of her on grounds of gender and/or family status contrary to the Employment Equality Acts, 1998-2011 as she was on maternity leave at that time after giving birth to her daughter the previous January. The respondent rejects the complainant’s assertions stating that there were factors unconnected with the complainant’s pregnancy, maternity leave or family status which gave rise to the termination of her employment at the expiry of her fixed-term contract.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 17 October, 2012. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 16 February, 2015 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 4 March, 2015. In the course of the Hearing Counsel for the complainant confirmed that his client was advancing an additional and/or alternative argument to the allegation of discriminatory dismissal in that she was discriminated against on grounds of gender and family status as regards access to employment when the respondent failed to renew her fixed-term contract in April, 2012. It was noted that this issue was first raised in the complainant’s submission which was received by the Tribunal on 13 March, 2013 and it is therefore referred outside of the period prescribed at section 77(5)(a) of the Employment Equality Acts but within the period prescribed by section 77(5)(b) of that statute. The parties were invited to make submissions on this matter subsequent to the Hearing.

3. PRELIMINARY TIME LIMIT ISSUE.

3.1 Counsel for the complainant submits that the Tribunal has a certain degree of latitude in permitting complainants to expand upon the complaint referred on the initial complaint form (EE1 Form). Counsel further submits that the EE1 Form is not prescribed by statute and cites the judgements of the High Court in County Louth VEC v Equality Tribunal & Brannigan[1] and Clare County Council v Director of Equality Investigations[2] in support of this argument. Counsel further argues that in the former authority cited McGovern J held that “so long as the general nature of the complaint ….remains the same” it is permissible to amend a claim so long as the respondent is afforded a reasonable opportunity to deal with the complaints in order to avoid prejudice to that party. Counsel states that the EE1 Form clearly indicates the nature of the complaint and the discriminatory grounds it is advanced on. He further submits that the respondent was on notice from March, 2013 that the complainant was advancing a complaint of discrimination on those grounds as regards “access to employment” and consequently, it was on sufficient notice of the case it was defending.

3.2 It is submitted on behalf of the respondent that the complaint of “access to employment” was only introduced by the complainant as an additional and/or alternative element of her complaint at the outset of the Hearing on 4 March, 2015. It argues that the expansion of the complaint at that juncture is statute barred and is not therefore properly before the Tribunal.

3.3 The essence of the argument advanced by Counsel for the complainant is that the initial complaint form referred to the Tribunal encompassed both elements of her complaint (i) she was dismissed in circumstances amounting to discrimination on grounds of gender and family status and (ii) she was discriminated against on the same grounds as regards access to employment when her fixed-term contract was not renewed when it expired in April, 2012 and consequently the statutory period(s) prescribed at section 77(5)of the Employment Equality Acts do not apply. I have carefully examined the EE1 Form referred by the complainant on 17 October, 2012 and I do not accept this proposition. Whilst I accept Counsel’s interpretation of the High Court authority cited, the circumstances of the instant case can, in my view, be distinguished. The EE1 Form referred on the complainant’s behalf by her solicitor states that the complainant is alleging she was dismissed for discriminatory reasons on grounds of gender and family status. The narrative furnished on behalf of the complainant in the section of the EE1 Form entitled “Complaint Specific Details” states as follows “I was let go while I was on maternity leave with no reason provided…”. It makes no reference whatsoever to the circumstances surrounding the alleged dismissal or that the complainant contends she was denied access to employment. Taking the ordinary meaning of the words “dismissal” and “access to employment” I am of the view that they denote distinct stages of the employment relationship which arise at opposite ends of that relationship. Even if I were to accept Counsel’s arguments in the instant case – that they arose on or around the same time as each other – I am satisfied that the first time the access to employment element of the complainant’s complaint was mentioned was in the submission filed on her behalf to the Tribunal which was received on 13 March, 2013. In the course of the Hearing it was confirmed that the last date of discrimination was 22 April, 2012. Consequently, this element of the complaint was referred outside of the six month period prescribed at section 77(5)(a) of the Acts. This period can be extended to a maximum of twelve months in accordance with section 77(5)(b) of the Acts where “reasonable cause” has been shown for the delay. The complainant has failed to show “reasonable cause” to enable her avail of this latter provision and I therefore find that this element of her complaint – access to employment – is not properly before me for investigation.

4. SUMMARY OF COMPLAINANT’S CASE

4.1 The complainant states that she commenced employment with the respondent on 31 May, 2010 as a Temporary Administrator. She states that this contract was fixed-term in nature and concluded on 26 November, 2010 in accordance with the terms of that contract. She adds that she was immediately re-engaged on a second fixed-term contract, this time as a Contracts Administrator, and that this contract expired on 1 April, 2011 in accordance with its terms. The complainant states that the role of Contracts Administrator involved additional duties and more responsibility. She further states that on the expiry of this contact she was immediately re-engaged in the same role on a third fixed-term contract which ran until 22 July, 2011. She adds however, that the duties she performed, the location of her employment and her attendance pattern were different during this period to those she had previously experienced. The complainant states that in May, 2011 she learned she was pregnant. Shet further states that she was initially reluctant to announce her pregnancy as she was conscious of the fact that she was providing maternity cover for another employee at that time and given her (the complainant’s) belief that she had made herself indispensable to the...