DWT10170

Position of the parties

Claimant

The Claimant contends that she was on maternity leave and was expected to return to work on or about September 2009. She told the Court in evidence that in or about August 2008 she informed her employer that she was pregnant and that her baby was due in April 2009. She said that in January she was placed on lay-off. The Claimant understood that the lay-off was for one month and she attended at her place of work on 2nd February 2009. She told the Court that she worked on that day and was told that no further work was available.

On 3rd February the Claimant contacted her employer to enquire as to her entitlements in respect to holiday pay and a back weeks pay. She spoke to Ms Jordan who is the Respondent’s Office Manager. Due to her poor command of English a friend assisted her and spoke on her behalf to Ms Jordan.

The Claimant told the Court that she did not indicate that she was leaving her employment nor did she ask for her P45. The Claimant also told the Court that she did not receive any correspondence from the Respondent and did not receive her P45, a reference and a cheque for money due to her, as claimed by the Respondent.

The Claimant said that she had changed her address and had informed her employer of her new address.

The Claimant told the Court that she gave birth in April 2009.

The Claimant attended at the Respondent’s premises in May 2009 in order to obtain a statement of income for the purpose of obtaining social protection benefits from the HSE. She met with Ms Jordan and gave her a form for completion which she had received for this purpose. The form was completed by Ms Jordan. A copy of this form was put in evidence.

This form is headed“Certificate of Income To be completed by your Employer and Returned to your Local Health Service Office”On this form Ms Jordan stated“employee on maternity leave 20/9/09”.The form was completed and signed by Ms Jordan and stamped with the Respondent’s stamp.

According to the Claimant she attended again at the Respondent’s premises in September 2009 to have a form completed in respect to child benefit. She was then told that her employment was terminated. She later received her P45 in the post.

In cross examination the Claimant denied that she had insisted on having her P45 returned or that she had threatened to consult a solicitor if the Respondent refused to return it. She also denied that Ms Jordan had advised her against terminating her employment as this would affect her capacity to accrue social insurance contributions thus affecting her entitlement to maternity benefit.

The Respondent

Ms June Jordan, Office Manager with the Respondent, gave evidence. Ms Jordan told the Court that the Claimant, with other employees, had been placed on temporary lay-off in January 2009. Initially it was anticipated that the lay-off would be for a period of one month but trading conditions deteriorated and the Claimant was subsequently informed by letter dated 23rd January 2009 that the lay-off would continue for a further month and that she would be contacted further towards the end of February 2009.

The witness told the Court that the Claimant attended at her workplace on 2nd February 2009. She was told that the lay-off was continuing and that she would be contacted when work became available. Nonetheless the Claimant was allowed to work on that day and was paid for the day.

It was the witness’s evidence that on the following day, 3rd February 2009, she received a telephone call from the Claimant. Due to the Claimant’s poor command of English the conversation was largely conducted through a friend of the Claimant. According to the witness the Claimant requested holiday pay and back pay. Ms Jordan explained that the back week had previously been paid. She also informed the Claimant that her holiday pay could not be paid unless her employment terminated. It was Ms Jordan’s recollection that the Claimant insisted that her P45 be returned to her with outstanding monies owed. The witness told the Court that she told the Claimant that if her P45 were returned to her this would have the effect of terminating her employment. She strongly advised the Claimant against doing so as this would affect her entitlement to claim maternity benefit. Nevertheless, in light of the Claimant’s insistence she arranged for the Claimant’s P45 to be returned to her together with outstanding monies owed. She also enclosed a reference (copy of which was put in evidence). These documents were sent by post to the Claimant’s address.

The witness recalled that in or about August 2009 she was contacted by an employer seeking confirmation of this reference, which she was told, had been submitted to this person by the Claimant in support of a job application.

The witness recalled the Claimant’s attendance at the Respondent’s premises in May 2009 seeking to have a form completed. She contacted the HSE in relation to this form and advised the person to whom she spoke that the Claimant was no longer employed by the Respondent. According to Ms Jordan she was nonetheless advised to complete the form, as it was necessary for her to do so in order to assist the Claimant in obtaining maternity benefit.

The Claimant again attended at the Respondent’s premises on or about 23rd September 2020 and requested that a form be completed in relation to child benefit. The witness was not in attendance on that day and the form was left for her attention. The witness contacted the relevant State office in relation to the matter and was advised that since the Claimant was no longer employed by the Respondent she should not complete the form. Ms Jordan returned the form to the Claimant and advised her accordingly. At that time the Claimant asserted that she had not resigned and that her P45 had not been returned to her. The witness then arranged for a copy of the P45 to be sent to the Claimant.

The witness accepted that the cheque which she had issued in February 2009 had never been cashed.

Conclusion of the Court in Relation to the Time Limit

There are two central points in issue in this case which turn on the date upon which the Claimant’s employment came to an end. The Claimant presented her complaint to the Rights Commissioner in November 2009. If, as contended by the Respondent, her employment ended in February 2009 any contravention of the Act about which the Claimant could complain would have occurred on or before that date. Consequently her complaint would have been presented to the Rights Commissioner outside the six month time limit prescribed by s.27(4) of the Act and would be statute barred. If, however, her employment terminated in September 2009, and she had accrued an entitlement to annual leave and public holidays in the period up to that date by virtue of being on maternity leave, her claim was initiated in time. Hence the Court must first determine the date on which the Claimant's employment came to an end.

There is a clear difference in recollection between the Claimant and Ms Jordan on both the content and import of the conversation between them on 3rd February 2009. In part this may have arisen due the unusual and difficult circumstances in which that discussion took place. It is clear that the Claimant has a very poor command of the English language and Ms Jordan was trying to communicate over the telephone through a friend of the Claimant who was acting as her interpreter.

Having heard the evidence of both the Claimant and that of Ms Jordan it is clear to the Court that the Claimant did not intend to resign but that Ms Jordan understood from the conversation that she had done so. Further confusion arose from the fact that the Claimant’s P45 was sent to her old address and it appears not to have been received by her. The Court places particular significance on the fact that a cheque for outstanding monies due to the Claimant was enclosed with the P45 and this cheque was never cashed. Given that the Claimant’s main purpose in contacting the Respondent on 3rd February was to obtain monies which she claimed were due to her, and the fact that she was then out of work and without an income, it is highly probable that had she received this cheque she would have cashed it.

Moreover, it is clear that when the Claimant attended at the Respondent’s premises in May 2009 for the purpose of obtaining a statement of income she regarded herself as still being employed by the Respondent. The Court is also satisfied that in completing the form, as her employer, the Respondent also acknowledged that the Claimant was still its employee and that she was on maternity leave. The fact that the Claimant again attended at the Respondent’s premises in September 2009 for the purpose of obtaining a statement in support of her application for child benefit is corroborative of her belief that the Respondent was still her employer.

Having considered all of the evidence the Court is satisfied, on the balance of probabilities, that the Claimant did not resign on 3rd February and that her employment with the Respondent subsisted until 23rd September 2009.

Her claim is for compensation in respect of annual leave pursuant to s.23 of the Act. Any such entitlement would have accrued on the cessor of her employment. Consequently her claim, which was presented on 5th November 2009, was within the time limit specified by s.27(4) of the Act and can be entertained. Accordingly the Court differs for the finding of the Rights Commissioner on that point.

In light of that finding the Court must consider if the Claimant accrued an entitlement to annual leave and public holidays in the six-month period prior to the date on which her claim was initiated. The Court invited the parties to make further written submission on this point.

The Solicitors for the Respondent furnished the Court with a supplemental submission on 11th October 2010. No further submissions were received on behalf of the Claimant.

Without prejudice to its submission that the Claimant’s employment came to an end in February 2009, the Respondent pointed out that the Claimant did not work for the Respondent for the period in issue and was not paid wages during this time. The Respondent told the Court that employees laid-off in January 2009 remained on lay-off up to and beyond September 2009. In these circumstances it submitted that were the Court to find that the Claimant was in employment during the time at issue it would have to conclude that she was on lay-off for the whole of the period and could not have accrued an entitlement to holidays in respect of that period.

The Respondent further submitted that the Claimant could not be regarded as having been on maternity leave during the relevant period because she had failed to invoke the mandatory procedures necessary to avail of such leave.

Conclusion of the Court in Relation to the Claimant’s Employment Status

It appears on the facts that in the period from January 2009 onwards the Claimant was on lay-off within the meaning of the Redundancy Payments Acts 1967-2007. Consequently she did not undertake any work for the Respondent in the leave year commencing 1st April 2009. A period of lay-off is not reckonable for holiday purposes. Consequently,prima facie, she did not have any outstanding entitlement to holidays, in respect of that leave year, at the time her employment terminated in September 2009.

If, however, the Claimant was on maternity leave during all or part of this period such period would count as time worked for the purpose of accruing holiday entitlements, by operation of s.22 of the Maternity Protection Act 1994, as amended. On this point the Respondent submitted that the Claimant cannot be regarded as having been on maternity leave within the meaning of the Act of 1994 because she had not given the notice required by s.9 of that Act of her intention to take maternity leave.

Unfortunately, and despite having been requested to do so, the representative of the Claimant failed to make any submissions on this point. Consequently the Court is required to make its determination on this aspect of the case on the basis of the submissions made by the Respondent and its own understanding of the applicable law.

The arbitral appellate role in relation to the Maternity Protection Act 1994 is vested by statute in the Employment Appeals Tribunal. Consequently this Court should defer to decisions of the EAT in matters concerning the construction of that Act. The Court’s attention was drawn to the decision of the EAT inKelleher v DHL International(P6/90) in which it was held that the statutory entitlement to take maternity leave is dependent on strict compliance with the notification requirement contained in s.9 of the Act. The mandatory nature of the notice requirements under similar provisions contained in the now repealed Maternity Protection of Employees Act 1981 (No.2) was also confirmed by the High Court inIvory v Ski-Line Ltd[1989] ILRM 433. The decision in that case has been consistently followed by the EAT (see, for exampleScott v Yeates & Sons Opticians Ltd15 [1992] 15 ELR 83)

These cases were concerned with the right of an employee, who had not complied with the statutory notice requirements, to return to work following maternity leave. However, theratioof these cases is that in order to avail of the benefits of the statute an employee must comply with her own statutory obligations under the Act. That includes the obligation to give notice under s.9. It follows that where a Claimant fails to comply with a statutory condition precedent to the operation of the Act, she cannot be held to have availed of statutory maternity under the Act of 1994, as amended.

In this case it is accepted that the Claimant did not give the notice required by s.5 of the Act. The Respondent was however aware of the Claimant’s pregnancy and gave her a statement of income for social welfare purposes which recited that she was on maternity leave until 20th August 2009. In these circumstances, and even if it were to be accepted that the Claimant was on a form of pregnancy related leave, that leave could only be regarded as contractual (as opposed to statutory) maternity leave which could not attract the protection of s.22 of the 1994 Act.

Determination

For the reasons set out above the Court has reached the conclusion that the Claimant did not have any entitlement in respect to the leave year commencing on 1st April 2009 nor was she due payment in respect to Public Holidays in the six months preceding the presentation of the within complaint. Consequently her complaint under the Act is not well founded.

Her appeal against the decision of the Rights Commissioner is disallowed.





Signed on behalf of the Labour Court



Kevin Duffy
23rd November, 2010______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.