ORDER NO. EEO001
SECTION 26(1), EMPLOYMENT EQUALITY ACT, 1977
WATERFORD LEADER PARTNERSHIP
(REPRESENTED BY JOSEPH P. GORDON & CO., SOLICITORS
- AND -
MS. PAULINE MULCAHY
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Alleged unfair dismissal under Section 26(1)/27 of the Employment Equality Act, 1977.
2. The dispute concerns one worker who commenced employment with Waterford Leader Partnership, on the 25th May, 1998, in the capacity of mediator. On her behalf, it is claimed that she was discriminated against, on the grounds of her sex, in that she was unfairly dismissed, on the 24th November, 1998, while on maternity leave. The claim was rejected by the employer.
The dispute was referred to the Labour Court, on the 1st June, 1999, in accordance with Section 26(1)/27 of the Employment Equality Act, 1977. The dispute was investigated by the Court, in Waterford, on the 11th November, 1999. Both parties made written submissions to the Court, which were expanded upon orally during the course of the hearing.
It is the claimant's case that she was dismissed from her employment by reason of her pregnancy, contrary to Section 3(4) of the Employment Equality Act, 1977.
The claimant was dismissed on 24th November, 1998, at which point she was on maternity leave. Her expected date of return was 26th November, 1998. She was, therefore, dismissed while on maternity leave. The significance of this point was not raised by the parties in the course of the hearing.
Subsequently, the Court referred the parties to the provisions of Section 23 of the Maternity Protection Act, 1994, which provides that the dismissal of a person while on maternity leave is void, and requested them to make further submissions on the relevance of this point.
The employer did not make any further submission. On behalf of the claimant, the Equality Authority submitted that Section 40 of the 1994 Act would apply in this case. This Section provides, in effect, that where an employee is not permitted to return to work she is deemed to have been dismissed on the expected date of return. The Court accepts this submission and has proceeded to determine this case on the basis that the claimant was dismissed on the 26th November, 1998.
The reason given by the employer for the dismissal related to certain alleged irregularities in the use of a mobile phone, supplied to her by her employer for official use, during her absence on sick leave and maternity leave. The employer also relied on an alleged irregularity in the purchase of an office diary.
It is clear from the evidence that the complainant had not been confronted with those allegations at any time prior to the decision to terminate her employment and was given no opportunity to respond to those allegations. The evidence also indicates that the claimant was acting with the knowledge and consent of her immediate manager in using the mobile phone for personal purposes on the understanding that she would reimburse the employer for the costs incurred. The claimant offered to make the appropriate payments to the employer but her offer was refused.
On the evidence before the Court, there is a strong prima facie case that the claimant was unfairly dismissed. However, the claim is not before the Court under the Industrial Relations Acts and the Court can make no recommendation on this aspect of the case.
The claim has been referred under Sections 26/27 of the Employment Equality Act, 1977. In the circumstances of the present case, the onus of establishing, on the balance of probabilities, that the dismissal resulted from one of the matters referred to in Section 3(4) of the Act of 1977 (which would include pregnancy) rests on the claimant. That is a heavy onus which is not easily discharged.
No direct evidence has been adduced to indicate that the employer was motivated by the claimant's pregnancy in terminating her employment. Rather, the Court has been invited to infer such a motive on the basis of the claimed incredulity of the explanation offered. The Court cannot accept this submission. The fact that the employer may have acted unfairly and unreasonably in relying on reasons put forward for the dismissal does not, in itself, establish that they are not the real reasons for the dismissal.
On the evidence before it, the Court does not accept that the onus of proof has been discharged by the claimant. In these circumstances the Court finds that the complaint herein is not well-founded.
Signed on behalf of the Labour Court
20th April, 2000 ______________________
MK/KD Deputy Chairman
Enquiries concerning this Order should be addressed to Michael Keegan, Court Secretary.