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Employer’s failure to attend second day of hearing costs them €61,000

In the recent decision of Adjudication Officer James Kelly, the Respondent was ordered to pay €61,000 in compensation to the Complainant.

Background

The Complainant commenced employment with the Respondent as an Office and Accounts Manager in March 1995, and worked her way up in the company to the position of Senior Manager before resigning in February 2018. The Complainant submitted that she was treated unfairly and less favourably on the gender, family status and disability grounds following her return to work in September 2017 after her maternity leave. She further claimed that she was effectively demoted from her role, as tasks and responsibilities were removed from her. She further claimed harassment, victimisation and constructive discriminatory dismissal.

The Complainant had submitted her grievance to the Respondent, which was investigated by Ms B, who the Complainant claimed was hired to replace her. Despite her objections to this, an investigation into her grievances took place. The Complainant received the outcome of her grievance in December 2017 and her allegations were not upheld. Despite being offered an appeal to a third party, the Complainant did not appeal.  

There were two hearing dates for this case, the first of which was attended by both parties. The WRC had refused two postponement requests on behalf of the Respondent and the Respondent failed to attend the second hearing date and instead submitted the same application for adjournment as an excuse for their nonattendance. The Adjudicator was satisfied that the Respondent made no effort to attend.    

Claims

 The Complainant took a number of claims under the Employment Equality Act. As the Respondent was not in attendance at the second hearing date, there was no evidence to contradict the Complainant’s claims. The Complainant established that she was discriminated against on grounds of gender and family status.

The Complainant submitted that on her return to work after her maternity leave things had changed and she felt as if she had been demoted. The Adjudicator confirmed that he heard evidence that suggested that her role did appear to be compromised in how she was being treated, spoken to and her lack of involvement in tasks that she would have previously been involved in, and it appeared now that her role was more of a General Operative than that of General Manager. It is worth noting that the Complainant only returned to her position on a Monday and worked through one week to Friday and subsequently was out of the work environment until she resigned. As the Adjudicator had no evidence to the contrary, he found in favour of the Complainant despite only her having only returned to work for 5 days, he was satisfied that her role had reduced from its pre-maternity status. The Adjudicator made an award of €53,000 in compensation for the distress suffered as a result of the discrimination.

The Complainant submitted that the victimisation that she was subjected to related to the Respondent’s failure to investigate or address her grievance, removing her car from her and replacing it with a lesser model and cutting her company phone. The Adjudicator was not satisfied that either of the first two aforementioned incidents could be considered victimisation, however, he was satisfied that the cutting of her work phone was victimisation. It caused the Complainant considerable stress and anxiety as she was not contactable as a mother of young children. The Complainant’s claim had not been rebutted by the Respondent and therefore the Adjudicator could only decide on the evidence before him. The Adjudicator awarded the Complainant €8,000 in respect of this victimisation.

The only other successful claim was under the Terms of Employment Information act, 1994 under which the Complainant was awarded €100 for a minor technical contravention as the Complainant worked in the HR department of the company and appeared to be well versed on the terms and conditions of her employment despite having not received an updated contract since the commencement of her employment.

Take away for employers

It is evident from this decision that is absolutely vital that employers attend hearings in order to refute evidence given by the Complainant.

This decision will most likely be appealed to the Labour Court due to the significant award handed down by the Adjudicator. The Respondent’s nonattendance at the hearing is ultimately the reason for such high awards.

Link: https://www.workplacerelations.ie/en/cases/2019/august/adj-00013042.html

30th August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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