PL1/2014, TE64/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEALS OF:                                                                                                                  CASE NO.

O'Neill & Co Solicitors                                                                                                    PL1/2014

                                                                                                                                       TE64/2014                                                                                            

against the recommendation of the Rights Commissioner in the case of:

Michelle Gilbourne

-v-

O'Neill & Co Solicitors

under

PARENTAL LEAVE ACT, 1998 AND 2006

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. J.  Fahy B.L.

Members:       Ms M.  Sweeney

                        Mr. J.  Flavin

heard this appeal at Limerick on 20th January 2015

Representation:

Appellant:       Ms Sarah Walsh BL, Law Library, Four Courts, Dublin 7, instructed by

                        O'Neill & Co Solicitors, 25 Glenworth Street, Limerick

Respondent:    Ms Deirdre Crowley, Crowley, Solicitors, The Officers Mess,

                        Old Fort Road, Ballincollig, Cork

Background:

These appeals are before the Tribunal by way of an employer appealing a Decision of a Rights Commissioner under the Parental Leave Act, 1998 and 2006, ref: r-127242-pl-12/GC, and a Recommendation under the Terms Of Employment (Information) Act, 1994 and 2001, ref: r-127243-te-12/GC.  The employer is referred to as the appellant and the employee the respondent.

The appeal under the Terms of Employment (Information) Act, 1994 and 2001, ref: r-127243-te-12/GC, was withdrawn at the outset of the hearing. 

Claimant’s case:

The Tribunal heard evidence from the Claimant.  She explained that she is a qualified solicitor and was practicing since 2000.  She commenced working for the Respondent company in 2005.  She worked in conveyancing, probate, etc.   On 17^th February 2011 she gave birth to her son.  She returned from maternity leave in August 2011.   On or about 20^th September 2011, by way of a conversation with GON, the principal of the Respondent company, she requested parental leave.  She explained to the Tribunal that she was willing to take parental leave by way of working a three-day week.    She was willing to do this because GON had previously asked her if she would work reduced hours.  So she was willing to facilitate her employer by reducing her hours.

She subsequently sent GON an e-mail sometime in November 2011 requesting parental leave.  Her understanding was that GON was not engaging positively regarding her request for parental leave; it did not seem important to him.  He did send a response to say she was entitled to the leave but did not engage with her to put the leave in place.   She did over time ask him when and how she would get the leave.    Time passed and Christmas 2011 passed into 2012.  GON still did not engage positively regarding the leave.  She was utterly confused as to why he did not engage because he had asked her previously to work reduced hours and if she was on parental leave working a three day week this would be the same as she would not be paid for the two days she was not working.

The situation was not resolved and she was served with notice of redundancy circa 01^st August 2012.   She finished working in the Respondent on 29^th August 2012.  The parental leave was never resolved.

Respondent’s case:

The Tribunal heard evidence from GON the principal of the Respondent.  He told the Tribunal that he qualified as a solicitor in 1984.  He gave evidence as to his background and work history.

He explained that he employed the Claimant in 2005 to take over for a solicitor who left the practice.  The Claimant mainly worked on conveyancing and some probate. He himself worked on litigation.

At some point in time the property market plummeted and conveyancing practically disappeared.  This meant that litigation was the mainstay of the practice.   He therefore had regular conversations with the Claimant as to the situation regarding the recession and how they should proceed.    

The Claimant had been granted parental/maternity leave previously.   He had employed a locum on one occasion but the second time he did not have to because of the lack of work.  

He was disappointed that he received an e-mail from the Claimant that she wanted all exchanges regarding matters (paternity leave etc.) by e-mail and not by face to face talks.  He did accede to this.     He made a point that it did not make sense to him that she should give evidence that she dealt with matters by way of talks.

The witness told the Tribunal that he had no objection to the Claimant taking parental leave.   He told the Tribunal that he did not deny the Claimant parental leave.  He explained that if she had taken parental leave it would not have affected him negatively as it would have been unpaid leave.

In cross-examination it was clarified with the witness as to whether the Claimant had taken maternity and / or paternity leave during the course of her employment with the Respondent.

Determination:

From the outset of the hearing the appeal under the Terms of Employment (Information) Act, 1994 and 2001, ref: r-127243-te-12/GC, was withdrawn. 

The Tribunal have considered all of the evidence adduced by the appellant and the respondent.  The Tribunal considered an e-mail from the employee to the employer requesting parental leave.   That e-mail was not responded to by the employer in any meaningful way.

The Tribunal upholds the Rights Commissioner Decision under the Parental Leave Acts, 1998 and 2006, ref: r-127242-pl-12/GC, in all respects.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)