FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 33 (1), MATERNITY PROTECTION ACTS, 1994 AND 2004 PARTIES : RESTORATIVE JUSTICE SERVICES LIMITED REPRESENDED BY CATHY MCGRADY B.L., INSTRUCTED BY JOHN L. MULVEY & CO. SOLICITORS. - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision no r-157716-mp-15/JW.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 8th December 2015. A Labour Court hearing took place on the 14th January 2016. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Kathryn Carolan (hereafter the Complainant) against the decision of an Adjudication Officer in her claim against her employer, Restorative Justice Services Limited (hereafter the Respondent). The claim was taken under the Maternity Protection Act 1994 (the Act).
Subject Matter of the Dispute
The Complainant is seeking to enforce a purported contractual term in her contract of employment entitling her to payment of remuneration during a period of statutory maternity leave.
Statutory Provisions
This claim was referred to the Adjudication Officer pursuant to s. 30 of the Act which provides: -
- (1) Subject to subsection (2), this Part applies to any dispute between the employee and the relevant employer relating to any entitlement of the employee under Parts II to IV (or any matter arising out of or related to such an entitlement) other than—
(a) a dispute relating to the dismissal of an employee; or
- (b) a dispute as to a matter which is within the competence of the Authority under the 2005 Act;
(2) This Part does not apply where the employee is in employment as a member of the Defence Forces and, accordingly, in the following provisions of this Part, “employee” does not include an employee in such employment.
(3) In this Part “the relevant employer”, in relation to an employee, means the employee's employer or, where appropriate, the successor or an associated employer.
(4) Either the employee or the relevant employer may refer a dispute to a rights commissioner.
(5) The Minister may make regulations for the purposes of this Part, and in this Part “prescribed” means prescribed by such regulations.
(6) In subsection (1)(a) “dismissal” has the same meaning as in the 1977 Act except that, in applying that definition for the purposes of subsection (1)(a), the expressions “employer” and “contract of employment”, where used in that definition, shall be given the same meanings as in this Act.
Section 22(1) of the Act provides: -
- During a period of absence from work by an employee while on—
(a) maternity leave,
(b) subsection (1)(a) leave, as defined in section 16(3), or
(c) leave granted under section 18,
and during a period of natal care absence, the employee shall be deemed to have been in the employment of the employer and, accordingly, while so absent the employee shall, subject to subsection (6) and section 24, be treated as if she had not been so absent; and such absence shall not affect any right (other than, except in the case of natal care absence, the employee's right to remuneration during such absence), whether conferred bystatute, contract or otherwise, and related to the employee's employment.
In this case the Complainant is contending for a purported contractual entitlement rather than an entitlement under the Act. The Court has no jurisdiction to entertain such a claim.
Outcome
The within claim is misconceived in law. The appeal is disallowed and the decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
21st January, 2016Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.