The recent WRC case of Svetlana Grodzicka v Astra Leisure and Ultra Fresh Services Limited – ADJ-00029417 involved allegations of discrimination on the grounds of family status and gender.
The Complainant claimed she was dismissed for discriminatory reasons while on maternity leave, in breach of the provisions of the Employment Equality Acts, 1998 and the Maternity Protection Act, 1994.
Facts: The Complainant worked for the Respondent from 27th November 2017 until approximately 2nd March 2020. She then commenced a new job as a music teacher in January 2020 and indicated to her existing employer (the Respondent) that she would need Tuesday, Wednesday, and Thursday off work each week to attend to this new role. She stated she could work weekends if needed but if she could not get these days off, she would leave.
The Complainant’s position was that she then went off on maternity leave. Her case was that she communicated to the Respondent in February 2020 that she could not continue to work at that time as she was being bullied and that she was leaving to go on maternity leave early as a result.
It is the Respondent’s position that the Complainant left her employment permanently as a result of the new job teaching music and on the basis of difficulty around rearranging her shifts to facilitate the three days off during the week and the unsuitability of that arrangement to the business needs and to others. The Respondent’s evidence was that the Complainant was clear she was leaving permanently, and that the Respondent’s principal gave her €300 out of his own pocket as a good will gesture and received a thank you card afterwards.
The Respondent’s principal confirmed he had not sought a resignation letter and had not sought letters from others who resigned previously.
The Complainant denied having said that she was “finishing up” in February 2020. She acknowledged she had said that she would come back in September “if there is a job for me”. However, she stated in evidence that this comment was made in relation to the fact the business was in the process of being sold.
It appears there were a number of WhatsApp messages exchanged between the Complainant and the Respondent from 1st April 2020 onwards. The Adjudication Officer (“AO”) took the view that the messages were not indicative of an employee who had been dismissed by her employer for discriminatory reasons while on maternity leave. The AO took the view that the messages indicated the Complainant’s employment had ceased permanently, and that she had sought clarification of this from the Respondent, possibly for taxation purposes.
The AO also observed that the Complainant had sought her P45 in the messages and sought clarification that she was ceased permanently and told the Respondent that it’s “ok”.
Decision: The AO made a point of saying that he was satisfied both the Complainant and the Respondent had given honest and credible evidence in relation to their own individual understanding of the situation pertaining at the time but that having investigated the complaint as submitted, it was his role to decide if a dismissal occurred and if it did, was it for discriminatory reasons as a result of the Complainant’s absence on maternity leave.
After considering the evidence the AO found on balance that the Complainant had resigned from her employment following the difficulties in facilitating shift changes and therefore held that, as she was not dismissed, her complaint of discriminatory dismissal was not well founded.
Takeaway for Employers and Employees: In respect of termination of employment, in order to avoid dispute later it is important for both the employer and the employee to be as clear as possible in their communications as to the fact of the termination and to ensure they are on the same page that the employment is terminating as and from a specific date. Reflecting the position in writing is probably also advisable in most situations.
Authors – Tara Kelly, Laura Killelea and Anne O’Connell
5th August 2022