A remarkable Industrial Tribunal case that is worth mentioning is that of Ms Cumbo vs Float Glass Ltd which revolved around a former employee of Float Glass Ltd who sued the latter on the ground of unjustified dismissal during the probation period.
The plaintiff, at the time of her dismissal was pregnant and claimed that her pregnancy was the reason behind her employment termination.
The defendant stated that the dismissal came about due to the lack of professionalism on the workplace and it went further to accuse the plaintiff of orchestrating an accident at work in order to fork out money from the defendant company. Thus, the parties were in disagreement on the reason behind the plaintiff’s termination. The parties even had contrasting views on the signing of the declaration of termination form. The plaintiff stated that she was pressured to sign a blank termination form whilst the defendant company denied the said accusations and stated that the form was filled and the plaintiff agreed voluntarily to sign it. Furthermore the parties were also in disagreement on the commencement date of employment. The defendant company said that the plaintiff started working within the company in September 2006 which date is reflected on the Jobsplus (formerly known as ETC) engagement form, whilst the former employee stated that she commenced her work in May 2006, which date is shown in a letter signed by her employer. It is worth noting that the date of commencement is pivotal in view of the fact that it can determine the end of the probation period.
The Industrial Tribunal decided to avail itself of the probability test in view of contrasting statements. The Tribunal came to the conclusion that it was the pregnancy of the plaintiff that most likely triggered the dismissal. It was also noted that no evidence was brought forward to prove that the former employee gave her resignation from work. There is a difference between contemplating to leave one’s employment and actually resigning. According to the Tribunal the termination of the employment contract occurred after the employer had knowledge of the plaintiff’s pregnancy.
The defendant company declared that the plaintiff was dismissed from work because her work attire was not suitable for the post she held and she was also flirtatious with her male colleagues. The Tribunal stated that these reasons are not considered to be so severe as to dismiss someone from work. Thus, the Tribunal accepted the plaintiff’s plea and awarded the latter a compensation that amounted to €4,542.28.
Float Glass Ltd decided to appeal the Tribunal’s decision on three points; that the Tribunal never stated that between the two contrasting versions, the plaintiff’s was more credible, secondly the Tribunal did not look into the starting date of the employment, and lastly, the company argued that the compensation granted to the plaintiff is not proportionate.
On the other hand, the former employee stated that the appeal is null and void as it is not based on a point of law. At this stage it is worth highlighting that when an appeal is lodged to the Court of Appeal and the pleas are not on points of law, this may render the appeal null and void. The Court of Appeal stated that the appeal lodged by the defendant company is in fact based on a point of law, thus, it went on to hear the case.
The Court confirmed the Tribunal decision at an appeal stage.
As one would presume, it is unlawful and discriminatory to dismiss an employee from work because she is pregnant. In cases of unfair dismissal, such as the dismissal of a pregnant employee, the Tribunal is the authoritative body to calculate the compensation due by the employer to the employee in respect of wrongful dismissals. Several factors are taken into consideration when determining the amount of the compensation due by the contravening party. These include: the real damages and the losses incurred by the employee, the dismissed employee’s age, and the skills which may affect the employee’s employment potentiality.
One may conclude that this case clarifies the point that an employee cannot be dismissed from her employment because she is pregnant, this irrespective as to whether she is during the probationary period or not.
