P7/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

Katarzyna Miaskiewicz          -appellant

                                                                                                                        P7/2013

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

Dublin Mroz Limited            -respondent

under

MATERNITY PROTECTION ACT 1994 AND 2004

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms J. McGovern B.L.

Members:     Ms J. Winters

                    Mr F. Barry

heard this appeal at Dublin on 28th November 2014

Representation:

Appellant:       Mr Marcin Szulc, Solicitor, 78 Benburb Street, Smithfield, Dublin 7

Respondent:    The manager of the company.

Background:        

This appeal came before the Tribunal by way of an employee (the appellant) appealing against the Rights Commissioner Decision (reference: r-134082-mp-13/RG).

The appellant commenced sick leave on 1 July 2012 and was paid illness benefit to 1 December 2012. The appellant was deemed fit to return to work on other dutiesby letter dated 21 November 2012 from the Medical Referee at the Department of Social Protection. It was the appellant’s case that she attempted a number of times to return to work between 1 and 6 December but there was no suitable alternative work available to her. The employee worked as a sales assistant and this involved standing in order to carry out her role.

There were no alternative duties which the employer could offer to the employee and the appellant therefore sought health and safety leave in writing from the employer in November and December 2012 but did not receive a reply.

In or around the same date the appellant appealed the decision of the Department of Social Protection which had found her fit for other duties. The appeal was heard on 31 January 2013 and was successful. The appellant was paid retrospectively by the Department of Social Protection for 1 December 2012 to 15 February 2013 at which time she commenced maternity leave.

The appellant’s claim is based on the fact that she applied to the respondent company in November and December 2012 for health and safety leave but that no response was received from the company. The employee based her claim on S.18 of the Maternity Protection Act, 1994 (as amended) stating that her employer had breached this section by not responding to her application for health and safety leave.

Determination:

The Tribunal finds that there was a breach of S.18 of the Act which states:

(1) If, by regulations under the 1989 Act implementing the 1992 Directive, an employer is required to move an employee to whom this Part applies to other work (whether as a result of a risk assessment or because the employee cannot be required to perform night work), but—

(a) it is not technically or objectively feasible for the employer to move the employee as required by the regulations, or

(b) such a move cannot reasonably be required on duly substantiated grounds, or

(c) the other work to which the employer proposes to move the employee is not suitable for her,

the employee shall be granted leave from her employment under this section.

(2) Where an employee is granted leave under this section, she shall be entitled to receive, on request to her employer, a certificate, in such form as may be determined by regulations—

(a) stating that she has been granted leave for whichever of the reasons in paragraphs (a) to (c) of subsection (1) is appropriate in the circumstances and containing such supplementary information as the regulations may require; and

(b) specifying the date on which the leave began and its expected duration.

(3) For the purposes of subsection (1) (c), other work is suitable for an employee if it is—

(a) of a kind which is suitable in relation to the employee concerned, as an employee to whom this Part applies; and

(b) appropriate for the employee to do in all the circumstances.

(4) For the first 21 days of leave granted to an employee by an employer under this section in any relevant period, the employee shall be entitled to receive from the employer remuneration of an amount determined in accordance with regulations.

(5) Regulations under subsection (2) or subsection (4) shall be made by the Minister after consultation with—

(a) the Minister for Finance;

(b) the Minister for Social Welfare; and

(c) the Minister for Enterprise and Employment.

(6) In subsection (4) “relevant period”, in relation to an employee, means the period beginning with her pregnancy and continuing beyond any confinement resulting from that pregnancy until she ceases to be an employee who has recently given birth or, as the case may be, an employee who is breastfeeding.

(7) Regulations under subsection (4) may provide that such day or days as may be determined under the regulations shall be left out of account in calculating the 21 days referred to in that subsection.

The Tribunal finds that the company failed to address the appellant’s request for health and safety leave made in November/December 2012 in any manner.

In the circumstances the company failed to comply with the requirements of S.18 of the Act and the Tribunal awards the appellant compensation in the sum of €150 as set out under S.32 of the Acts, thus upsetting the Rights Commissioner Decision (reference: (reference: r-134082-mp-13/RG).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)