David Aranda Petit Delice Limited v Jessica Padayachee – EDA2219 is a recent Labour Court appeal of a decision of the Workplace Relations Commission (“WRC”).
The Complainant, Ms Padayachee, submitted complaints of discrimination on grounds of race, gender and family status to the WRC under the Employment Equality Acts, 1998-2015 (the “Acts”). The Complainant is a South African national and argued that the Respondent refused to sign her Work Permit application because she was pregnant. This was denied by the Respondent. The original WRC decision upheld the complaints in relation to gender and family status. The Respondent Employer was ordered to pay the Complainant €33,600 in compensation and appealed the decision to the Labour Court (the “Court”). The Adjudication Officer (“AO) did not uphold the Complainant’s complaint on grounds of race and this aspect of the decision was not appealed to the Court. During the appeal hearing, the Complainant’s representative confirmed that no case was being made on the basis of family status, and that the sole issue before the Court was a complaint of gender discrimination.
Facts: The Respondent was a bakery whose owner/manager is Mr David Aranda. The Complainant was moving from South Africa to Ireland and sought employment as a Pastry Chef. Following an interview and a skills trial in December 2018 with the Respondent, they confirmed that they would hire her. In January 2019 the Complainant contacted Migrant.ie for help with the Work Permit application process. Throughout January and February 2019 the Complainant made progress with her application and acknowledges the Respondent was helpful in assisting her. The Complainant was due to start work on 1st March as per her contract, but she commenced work on 25th February. A different version of events was provided by the Complainant and the Respondent as to the reason for this. The Complainant’s evidence was that she informed the Respondent that she did not have a PPS number and that she was advised by Migrant.ie to wait until her Work Permit was granted before commencing work. She told the Court that the Respondent was insistent on her starting in February and it was made clear to her that if she did not start work, they could change their minds about applying for her Work Permit. The Respondent, on the other hand, admitted that the Complainant started work in February and that she was paid in cash, but argued that it was the Complainant who was actively seeking to commence work earlier, citing text message exchanges.
The Complainant continued to work throughout March and more progress was made with her Work Permit application. In order for the application to be completed it needed to be signed by the Respondent. On 24th March 2019 the Complainant informed Ms. O’Leary, Mr. Aranda’s mother, that she needed her Work Permit application form signed and told her she was pregnant. The Complainant gave evidence that Ms. O’Leary told her that she already knew and that they were no longer sure if they wanted to proceed with her Work Permit application. The Complainant returned to work on 26th March 2019 after being unwell. Ms. O’Leary messaged the Complainant looking for her PPS number and the Complainant confirmed she did not have one yet and that she could only get one once she had her Work Permit. The Complainant told the Court that she sought confirmation of the Respondent’s continued support with her application and that Ms O’Leary texted “yes” in response and “get married”, presumably as a joke.
On 29th March 2019, the Complainant texted Mr. Aranda and informed him that she was pregnant. It was Mr. Aranda’s position that this was the first time he was informed about the Complainant’s pregnancy. The Complainant claimed that she met with Ms. O’Leary so that she could sign her Work Permit application form, but that Ms. O’Leary told her that they had decided not to sign the form and that she would not be paid for work done in March because she did not have a PPS number. The Complainant’s evidence was that she asked for an explanation as to why they decided not to continue with her Work Permit application and was told that she would be informed by email, but that she never received any such email. The Respondent denied this. Evidence was given on behalf of the Respondent that Ms. O’Leary merely informed the Complainant that she could not sign the form and that it would have to be signed by Mr. Aranda. The Complainant claimed that she asked if she could return to work on 1st April 2019 and was told she should not. It was the Complainant’s case that the Respondent did not raise any issue with her suitability for the role at any stage and that the sole reason for the Respondent not signing the Work Permit application form was that she was pregnant.
The Respondent denied that there was any discrimination. It was the Respondent’s position that the Complainant was not dismissed and that she never requested Mr. Aranda to sign her Work Permit application form notwithstanding that she was told to do so by Ms. O’Leary. The Respondent argued that the Complainant’s employment was reliant upon her obtaining the appropriate Work Permit and that it was her responsibility to do so. The Respondent claimed that the Complainant stopped attending work because she decided to pursue a claim of discrimination against the Respondent through the WRC. According to the Respondent, the Complainant decided to pursue a claim of discrimination before Mr. Aranda had even been informed of her pregnancy. He claimed that his mother had not told him that the Complainant was pregnant and this was confirmed by evidence provided by Ms. O’Leary.
A number of legal arguments were presented by the Complainant and the Respondent, including as to whether or not the Complainant had made out a prima facie case for discrimination. The Respondent also argued that the Complainant may not have qualified for a Work Permit so would not have been able, lawfully, to take up the role. Evidence was given to the effect that the Complainant had been informed that she would only qualify for a Work Permit if her monthly pay was at least €2,800. Her agreed monthly pay was €2,000. The Complainant gave evidence that she agreed with the Respondent to include a monthly rate of pay of €2,800, but that she would in fact be paid €2,000 per month.
Decision: At the outset of its decision, the Court noted that although it would ordinarily set out the applicable law before setting out its reasoning, in this case it had to first consider whether or not the law was in fact applicable. The Court noted the extensive submissions on behalf of the Respondent regarding the Supreme Court decision in Sobhy v Chief Appeals Officer and Ors (2021). However, the Court was of the view that the decision was not relevant to the facts of the case.
The Court referred to the fact that the Work Permit application form, if submitted, would have contained an inaccurate figure for the Complainant’s salary and that her actual salary was not of the level required for her to qualify for a Work Permit. The Respondent’s case was that she deliberately falsified this figure and the response from the Complainant’s representative was that she did so on the advice of Migrant.ie.
The Court noted that the question it had to consider was “whether the failure by the Respondent to sign an application that, both parties acknowledge, would, if submitted, contain such an inaccuracy can create a basis for a complaint under the Act”.
The Court concluded that it would be “unthinkable for it to issue a Determination that an employer is compelled to sign an application that contains an inaccuracy that may very well render them liable, should they do so, to potential prosecution and, at the very least, would open them to the accusation of moral, if not legal, dishonesty.”
The Court’s view was that this was determinative of the matter and that it was not required to consider the case further. “The Respondent is obligated to act within the law and is absolutely entitled to protect its reputation. There is no obligation, and there can be no obligation, on the Respondent to justify its failure to sign the application if, by so signing, it would involve submitting false information to the appropriate authorities.”
The Court concluded that the “very basis” for the complaint was not well founded and the appeal was therefore successful.
Takeaway for Employers: Employers should note that there is strong protection for pregnant women in Irish employment and equality legislation. Maternity leave is deemed to be a protected leave and the Employment Equality Acts 1998-2015 protect pregnant women from discrimination on the grounds of gender. The Court’s decision in the Padayachee case was not based on an analysis of Irish Employment Equality legislation, but rather on the Court’s determination that the Respondent could not be compelled to sign, or to justify its decision not to sign, a Work Permit application form that would result in the provision of false information to the relevant authorities, if submitted. The outcome of the appeal may have been different had there been no falsification of the Complainant’s salary on her Work Permit application form.
Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
05 September 2022