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1. The Plaintiff commenced a one year fixed term contract of employment with the second Defendant (with a probationary period of three months) on the 25th of May 1998. She took sick leave on the 10th of July 1998 until the 20th of August 1998 when she gave birth to a baby. She then took maternity leave which expired on the 26th of November of that year.

2. She was purportedly dismissed on the 24th of November, that is during her maternity leave. By Section 23 of the Maternity Protection Act, 1994 such a purported dismissal is void. By Section 40 of the same Act, however, an employee who is not permitted to return to work is deemed dismissed on the expected date of return.

3. The Plaintiff claims that the real reason for her dismissal was pregnancy and not the alleged abuse by her whilst on pregnancy leave of a mobile phone facility afforded to her by her employer nor irregularities alleged against her by her employer in relation to the purchase of an office diary.

4. Accordingly she referred the issue between herself and the second Defendant to the Labour Court pursuant to Section 26(1) and 27 of the Employment Equality Act, 1977.

5. By Order dated 20th of April 2000 the Labour Court dismissed this claim by the Plaintiff and she appeals to this Court, now, on a point of law.

6. In its Order dated the 20th of April 2000 the Labour Court acknowledged that:-

7. The Labour Court’s Order went on to point out that there was a strong prima facie case that the Claimant was unfairly dismissed but acknowledged that the claim was not before the Court under the Industrial Relations Acts and the Court could make no recommendation on this aspect of the case. Rather the claim had been referred under the Employment Equality Act, 1977 with the result that the Plaintiff took on 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), and asserted that this was a heavy onus which was not easily discharged.

8. The Labour Court then proceeded in the curial part of the Order as follows:-

9. Before dealing with the submissions made to this Court on the appeal from that Order on a point of law I note that the finding by the Labour Court that the Claimant was acting with the knowledge and consent of her immediate manager in using the mobile phone for personal purposes and on the understanding that she would reimburse the employer for the costs incurred was amply supported by evidence both written and oral put before the Labour Court. In regard to the alleged irregularity in relation to the purchase of an office diary the evidence was paltry in the extreme and this does not appear to have been a very significant part of the employer’s case. It merited merely a passing reference in the Order of the Labour Court.

10. The evidence before the Labour Court showed that certain differences arose between the manager of the second Defendant James Taaffe and the Plaintiff in connection with her paid absence from the second Defendant in that James Taaffe wished her to take her maternity leave in a single uninterrupted tranche whereas the Plaintiff wished to break it. Mr Taaffe had his way on this point. Secondly he wished her to take special leave without pay until the commencement of her maternity leave but on this he did not succeed. The evidence also showed that the Plaintiff’s immediate superior Kieran Eaton did indeed arrange that she could use the employer’s mobile phone while away from the office for personal and business calls, that she was required to be accessible on the phone to the employer, that while she was in hospital-for a considerable time-she did not have any other phone and that it was agreed that she would reimburse her employer the cost of her personal phone calls. This she had offered to do but her employer refused to accept it. The evidence also established that the Plaintiff had a very difficult time with the birth of her child on the 20th of August 1998 who was born three months premature being the third and only survivor of triplets. On that date she had been confined for about seven weeks. The mobile phone was returned by her to her employer on the 1st of September 1998 and, as I indicated already, she was purportedly dismissed on November 24th and by operation of law deemed to be dismissed on the 26th of that month.

11. From the foregoing summary recital it is clear that there were difficulties between the Plaintiff and the second Defendant which touched on her absence, due to pregnancy, from her work. Indeed not only was she available at work only for the first fortnight of the six month period and absent with pay for the rest but there were difficulties to which I have already alluded in relation to her status and continued pay whilst away from the workplace.

12. The circumstances could therefore yield the impression that any dismissal on her return from maternity leave was related to her pregnancy. Furthermore the grounds advanced relating to alleged misuse of the mobile phone and the handling by the Plaintiff of the financing of a diary might, given the circumstances described above, appear unlikely to be the true reasons for her dismissal.

13. After a full hearing, however, which included not only the written material which is before this Court but also oral evidence (subject to cross-examination) which was not before this Court, the Labour Court held otherwise and to the effect that the Plaintiff had not established that the real reason for her dismissal related to her pregnancy and that the fact that the reasons advanced might appear questionable or poor (my words) did not mean that they were not in fact the real reasons. In reaching its decision the Labour Court had before it, and considered, the evidence on behalf of the second Defendant in support of its written assurance that the Plaintiff’s dismissal had nothing to do with her pregnancy.

14. Mr O’Neill B.L. on behalf of the Plaintiff submitted to this Court

15. Mr O’Neill submits that a similar approach should apply in a case where an employee cannot, realistically, give direct evidence of what was going on in the mind of an employer who dismisses her during her pregnancy.

16. In response Ms. Bolger B.L. submits that:-

17. I state at once that I accept that the mere coincidence of the date of dismissal with the ending of the employee’s pregnancy leave is not of itself sufficient to raise an inference (as distinct from a suspicion) that the reason for the dismissal was related to the pregnancy so as to shift the onus to establish that it was not on to the Defendant. I agree that something else is required.

18. In this case, however, in my view something else is present. In the first place the reasons advanced are said to be incredible given that the alleged impropriety in relation to the mobile phone was in relation to an agreement with the employee’s immediate superior and reliance on the diary allegation was so tenuous as to be virtually non-existent. Furthermore and secondly this impression is fortified by the presence of a context which shows that the employer had difficulties with the Plaintiff during the course of her (admittedly probationary) employment which difficulties related to the management of her payment during her leave which was related to her pregnancy.

19. Having said this, however, it must be remembered that the Labour Court had before it all the written evidence together with oral evidence subjected to cross-examination. The oral evidence was not before this Court. The written evidence included a written assurance in the course of a letter from the second named Defendant that pregnancy was not the reason for the Plaintiff’s dismissal and this, I understand, was supported by oral evidence given by James Taaffe, manager of the second Defendant to the Labour Court.

20. There is abundant authority to the effect that this Court when hearing an appeal limited to a point of law will be very slow in such circumstances to interfere with a finding of fact by a tribunal such as the Labour Court unless it involves a clear breach of legal principle or a conclusion of fact so irrational so as to be unsustainable.

21. Mr O’Neill submits, nonetheless, that because the Labour Court has acknowledged that the employer may have acted unfairly and unreasonably in relying on the reasons relating to the mobile phone and the diary that therefore as a matter of law the Labour Court is bound to reject such reasons as being clearly not the real reasons and one is left with the only other candidate for the real reason namely pregnancy. In advancing this proposition Mr O’Neill relies on the paragraph in the Labour Court’s report already quoted to the effect that no direct evidence had been adduced to indicate that the employer was motivated by the Claimant’s pregnancy but rather the Court had been invited to infer such a motive on the basis of the claimed incredulity (sic) of the explanation offered. This submission was rejected by the Labour Court. Mr O’Neill laid particular emphasis on the following sentence which he says comprises an error of law:-

22. In my view this sentence comprises nerely a gloss by the Labour Court on the conclusions set out in the immediately preceding sentence which rejected the invitation to draw an inference favourable to the Plaintiff. I do not, in fact, agree that it is erroneous either in law or in logic to say that because a person offers a bad reason this necessarily means that the bad reason is not the real one. Rather that seems to me a commonplace observation: one may well truly give as one’s reason for dismissing a employee the fact that one doesn’t like her. This “bad” reason may well be repugnant, precisely because it is the real reason. In my view that is all the Labour Court is saying in the sentence under analysis.

23. More centrally, in the paragraph under review the Court is rejecting the invitation to draw an inference having considered all the material including the oral evidence and the cross-examination. That is precisely the discretionary quasi judicial function with which the Labour Court (and no one else) is charged to carry out. The fact that one may disagree with the conclusion, or strongly disagree with it, is - in law - neither here nor there. It is the Labour Court and no one else which is charged under our law with carrying out this quasi judicial function and it is only if their conclusion is so abhorrent to logic and common sense or involves an error of law that the High Court will interfere with it. Clearly the Court was within its jurisdiction to accept the written and oral assurance of the employer in preference to the written and oral assurance of the employee and I cannot accept that in so doing they are in breach of legal principle or have offended logic and common sense to the point where this Court should interfere.

24. In the circumstances I would dismiss the Plaintiff’s appeal.