Rio's Takeaway Ltd Rio's (Represented by H. Pat Barriscale B.L. Instructed by Dorothy Tynan & Company Solicitors) v Hazel Sheehan (Represented Jack Nicholas B.L. Instructed by O'Neill Solicitors)

 
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Labour Court (Ireland)

FULL RECOMMENDATION

ADE/17/20

DETERMINATION NO.EDA186

ADJ-00003928 CA-00003028-001

PARTIES:
Rio's Takeaway Limited Rio's (Represented by H. Pat Barriscale B.L. Instructed by Dorothy Tynan & Co Solicitors)
and
Hazel Sheehan (Represented Jack Nicholas B.L. Instructed by O'Neill Solicitors)
SUBJECT:
1

1. Appeal Of Adjudication Officer Decision No: ADJ-00003928 CA-00003028-001.

BACKGROUND:
2

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 28th February 2017. A Labour Court hearing took place on 24th October 2017. The following is the Court's Determination:

DETERMINATION:
3

This is an appeal by Rio's Takeaway Limited against the decision of an Adjudication Officer in a complaint made under the Employment Equality Acts 1998 – 2015 (the Act) by Ms Hazel Sheehan of discrimination on grounds of gender. For ease of reference the parties will be referred to in this determination as they were at first instance, viz Rio's Takeaway Limited as the Respondent and Ms Sheehan as the Complainant.

4

The Adjudication Officer found that the Respondent did discriminate against the Complainant on grounds of gender in that the Respondent had discriminatorily dismissed the Complainant and had discriminated against her on grounds of gender in regards to her conditions of employment. The Adjudication Officer awarded the Complainant the sum of €24,000 in compensation for the effects of discrimination.

5

The decision of the Adjudication officer was made on 26 th January 2017.

Background
6

The Complainant was employed by the Respondent on 11 th February 2015 and following a period of employment in the Parnell Street outlet of the Respondent she was assigned to the Castletroy outlet of the Respondent.

7

In late 2015 the Complainant learned she was pregnant and shortly thereafter made her pregnancy known to her manager Ms JC. Shortly thereafter the Complainant was assigned to the Respondent's Parnell St. outlet. On 9 th February 2016 certain product handling events occurred in the Parnell St. premises and the following day the Complainant received two telephone calls from management of the Respondent company. She attended for work that afternoon and completed her shift. The Complainant subsequently obtained a medical certificate and did not attend for work thereafter.

Position of the Respondent
8

The Respondent submitted that the Complainant, having commenced employment in 2015, worked very satisfactorily and performed well in her role. The Respondent submitted to the Court that the performance of the Complainant was such that the Respondent intended to appoint her to the role of supervisor in a new outlet when that would open.

9

The Respondent submitted that the Complainant advised her manager in December 2015 that she was pregnant and that she was experiencing physical difficulties as a result of her pregnancy. The Respondent submitted that, following a joint exploration of options available to her to facilitate her remaining in employment while experiencing the physical difficulties of her pregnancy, it was jointly decided that she would move to the Parnell Street outlet of the Respondent company. The Respondent submitted that she was allotted evening shifts principally on Monday, Tuesday and Wednesday as these were the ‘quietest’ shifts in any of the outlets operated by the Respondent and that this shift allocation was jointly decided upon in discussion in December.

10

The Respondent submitted that on 9 th February 2016 another employee at the Parnell Street outlet, Ms RD, removed from the freezer a nine kilogramme block of frozen fish fillets together with all of the frozen sausages which would be required for Wednesday 10 th February which was ‘Ash Wednesday’ and one of the busiest days in terms of fish sales in Respondent's business. The Respondent submitted that while Ms RD had removed the frozen fish product from the freezer before her shift concluded it was the function of the Complainant on the evening shift to separate the individual fillets from the frozen block. The Respondent submitted that this separation of fish was essential to the de-frosting process and did not involve any lifting.

11

The Respondent submitted that on the following morning it was discovered that the fish product had not been separated and that the product was consequently not capable of being used on that day which was the busiest day of the year for the sale of fish in the Respondent business. The Respondent submitted that at that point the business owner, Mr DR, contacted the complainant to ascertain what had occurred but did not rebuke or reprimand the Complainant.

12

The Respondent submitted that later that day the Complainant's manager, Ms JC, contacted the Complainant to express her serious concern about the mistake which had occurred on 9 th February and to set out the serious consequences arising from the occurrence for the business of the Respondent. The Respondent submitted that no suspension of the Complainant took place and that she had attended for work that afternoon as scheduled and completed her planned shift. On the following day the Complainant attended at the Castletroy premises and submitted a medical certificate. The Respondent submitted that the Complainant had advised on that date that she would remain on sick leave for the remainder of her pregnancy and maternity leave period.

13

The Respondent submitted that the Complainant texted her manager, Ms JC, on 16 th February 2016 seeking a letter stating that she was not being paid while out sick and this was supplied to her. The Respondent submitted that the Complainant, in July 2016, contacted the Respondent seeking her P45 and following two conversations the Respondent advised her that a letter would suffice given that the Complainant intended to return to work at some point. On 12 th July the Complainant made a complaint to the Workplace Relations Commission and on 19 th July the Complainant's legal representative sought the Complainant's P45 and this was supplied on the same date.

14

The Respondent submitted that the Complainant had not been discriminated against on grounds of gender in terms of her assignment to Parnell St. and further submitted that no dismissal of the Complainant had taken place.

Evidence of Mr D R
15

Mr DR, owner of the Respondent business, stated in direct evidence his view that the Parnell Street premises is not located in an ‘unsavoury area’ and that it is adequately covered by CCTV technology. He stated that the Parnell street premises is primarily a daytime business with very few sales occurring during the evening shift. He stated that on 10 th February 2016 he was advised by another staff member that the fish had not been separated and was frozen and not capable of being sold that day. He stated that he telephoned the Complainant but that he did not reprimand her. He stated in evidence that the purpose of the telephone call was to establish what had occurred and in particular where communication had broken down to the degree that the necessary work was not carried out on the 9 th February. He stated that his primary concern was to set about resolving the issue arising from the unavailability of fish for sale that day and that he commenced that process as soon as the telephone call with the Complainant had concluded.

16

He stated that he never discussed the suspension of the Complainant with Ms JC. He stated that he had never suspended any member of staff in the business.

Evidence of Ms JC
17

Ms JC, manager of the Complainant, stated in evidence that the Appellant was an excellent employee of the Respondent. She stated that the Appellant was seen as a person who could become a supervisor with the Respondent.

18

Ms JC stated that the Complainant was the fifth or sixth person who had become pregnant while in the employ of the Respondent in three years.

19

She stated in evidence that the Complainant had come to her in a small office in the Castletroy premises in December 2015 and had indicated that she was pregnant, having a difficult pregnancy and that she was worried that she would not be able to remain in work throughout her pregnancy. Ms JC stated that the Complainant was concerned also that she may not be able to remain in employment long enough to qualify for maternity benefit. Ms JC stated that another employee, Ms RD, was present for that engagement with the Complainant.

20

Ms JC stated that at that meeting a discussion ensued where the matter was jointly discussed and considered. She stated that at the end of that discussion it was decided that the Complainant would be re-assigned to the Parnell St. outlet which was closer to her home. The re-assignment would be to a post which demanded no lifting or physical effort and where very little work would be required of the Complainant. Ms J C stated that the Complainant was to be assigned to the city centre premises to work for three evenings per week from 5.00pm to 11.00pm and with no loss of hours. Ms JC stated that this pattern of shifts was identified because the Parnell St. outlet was very quiet at those times and because the Complainant could sit and take breaks whenever she considered it necessary or appropriate. This pattern contrasted with a pattern generally of two days and one night per week in Castletroy.

21

Ms JC stated that this assignment had...

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